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1839 


■AM 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


INVESTIGATION 


INTO      THE 


FIFTEEN     GALLON    LAW 

OF    MASSACHUSETTS, 


BEFORE  A  JOINT  COMMITTEE  OF  THE  LEGISLATURE 


WHICH  BEGAN  JAN.  39  AND  CLOSED  FEB.  30,  1839, 


UPON      TH1 


MEMORIAL  OF  HARRISON  GRAY  OTIS  AND  OTHERS 
FOR  THE  REPEAL  OF  THE  LAW: 


WITH    THE   ARGUMENTS    OF 


FRANKLIN  DEXTER  &  B.  F.  HALLETT, 

As  Counsel  in  support  of  the  Memorial. 


7*"*- 


PUBLISHED  BY  DIRECTION  OF  THE  COMMITTEE  FOR  THE  MEMORIALISTS. 


BOSTON : 
PRINTED    BY    J.    H.    BUCKINGHAM, 

OFFICE    OF    THE    NEW-ENGLAND  GALAXY. 

1839. 


s 


INTRODUCTION. 


It  was  not  the  original  intention  of  the  Committee  who  had  charge 
of    he   Memorial   of  Harrison    Gray  Otis,  Thomas   H.   Perkins,  John 
barker,  Thomas  Dennie,  Nathaniel  Goddard  and  forty-eight   hundred 
others   inhabitants  of  Boston  ;  to  present   to   the  public  a  detail  of  the 
proceedings   before   the  Committee    of  the   Legislature   to  whom  that 
subject  was  referred;  but  the  repeated  misrepresentations  made  of  the 
views  ol   the   Memorialists  by  those   who  in   this  unhappy  division  in 
society,— created  by  a  busy  few,  the  most  intolerant  and  the  least  dis- 
creet,—have  sunk    the   original    benevolent   purposes   of    this    moral 
.re  orm  into  a  mere  partizan  struggle  for  a  triumph  in  the  experiment  of 
cstaohshing  an  inquisition  over  the  consciences  and  appetites   of  their 
ellow-c.tizens,  by  aid  of  an  obnoxious  law;  seem  to  render  it  a  pub- 
lic duty  to  the  present,  as  well   as  to  future  generations,  to  embody  in 
a  permanent  form,  the  grounds   of  the  objections  to  the  law   and  the 
incontestible  facts  which  were  substantiated  in  the  investigation. 

It  becomes  the  more  important  to  discharge  this  duty  because  this 
great  question  is  still  open  before  the  public  for  their  further  action,  in 
consequence  of  the  failure  of  the  Legislature  to  repeal  or  modify  the  law 
at  the  last  session,  although  repeated  votes   in   both    branches    demon- 

fnrl  th      f     ^  WaS  a  df  \ded  maJ°rit^  aSainst  k'  in  its  Prese"t  form, 
and  that  it  was  not  repealed  solely  because  this  majority,   at  the  close 

NS?°n;an     "  the  dlF6rS^  °f  °Pinions>  caused  hy  a  S^  "um- 
ber of  different  projects,  were  unable  to  agree  upon  a  substitute. 

It  is  also  important,  that  while  so  much  is  published   in   support  of 
the  law,  the  reasonS  against  it   should  be  equally  accessible  to  an   in- 
quiring pub  he.     The  opponents  of  this  law  object  to  it  on  the  highest 
fundamental  principles  of  the  Constitution  ;  viewing  it  as  reaching  much 
deeper  than  a  temperance  reform ;  and  as,  in  fact,  an  entering  wldge,  a, 
plausible  pretext  for  an  experiment  upon    popular  forbearance,  to°tert 

686431 


how  far  fanaticism  and  bigotry  can  go  in  getting  the  sanctions  of  law 
in  tnis  State  to  enforce  particular  creeds,  and  in  reviving  the  long  ex- 
ploded dogma  of  persecution  for  opinion's  sake,  by  virtue  of  pains  and 
penalties. 

They  wish,  therefore,  to  have  their  views  fairly  presented,  and  not 
distorted  through  the  medium  of  prejudice  and  intolerance,  which  the 
advocates  of  the  law  attempt  to  place  before  the  eyes  of  the  people, 
whenever  they  are  called  on  to  look  at  this  subject.  These  views  will 
be  found  in  the  following  pages,  as  stated  in  the  Memorial,  and  in  the 
arguments  and  evidence  by  which  it  was  sustained  before  the  Commit- 
tee. To  these  positions,  deliberately  taken,  and  which  will  be  firmly 
and  perseveringly  sustained,  is  now  asked  the  candid  attention  of  that 
enlightened  and  liberal  portion  of  the  people  who  have  not  lost  their 
clearness  of  perception  by  looking  at  a  single  object  through  the  nar- 
row orifice  of  sectarianism  and  party  spirit,  until  they  can  see  nothing 
else ;  nor  have  learnt  to  regard  the  professed  end  in  view  as  a  sufficient 
justification  of  any  means,  however  arbitrary  and  inexpedient,  that  may 
be  resorted  to  by  heated  partizans,  to  sustain  it :  forgetting  that  tem- 
perance in  legislation,  temperance  in  the  social  relations,  temperance  in 
language  and  opinions,  temperance  in  moral  reform,  and  temperance 
in  the  enforcement  of  favorite  theories,  with  becoming  charity  toward 
all  who  differ  in  opinion  from  the  promulgators  of  new  creeds  and  doc- 
trines in  meats  and  drinks  as  well  as  morals  and  religion,  are  quite  as 
emphatically  enjoined  upon  all  good  citizens  as  is  that  temperance 
which  they  suppose  can  be  enforced  only  by  a  legally  enjoined 
abstinence,  under  pains  and  penalties,  from  the  temperate  use  of  a  par- 
ticular beverage.  In  a  word,  the  opponents  of  this  law,  as  will  be 
seen  by  a  candid  examination  of  the  grounds  taken  before  the  Com- 
mittee, oppose  coercion  as  applied  to  voluntary  morals,  in  every  form ; 
and  their  arguments  against  law  temperance,  are  precisely  the  same 
in  principle  as  have  been  urged  in  this  Commonwealth,  from  the  per- 
secution of  Roger  Williams  to  the  present  time,  against  law  religion. 
The  flippant  retort  of  the  temperance  zealots,  which  is  their  most  ready 
and  efficient  argument,  that  the  opponents  of  this  law  want  rum  lib- 
erty, is  just  as  sound,  and  no  sounder,  as  was  the  like  argument  of  the 
persecuting  bigots  who  prayed  for  laws  to  hang  Quakers  and  banish 
Anabaptists,  that  the  opponents  of  those  detestable  laws  wanted  athe- 
istical liberty.  We  want,  that  Liberty  wherewith  God  and  the  Consti- 
tution have  made  us  free,  and  he  who  surrenders  it  at  the  call  of  fanati- 
cism, in  a  single  point,  be  it  in  meat  or  drink,  mind  or  matter,  body  or 
soul,  is  recreant  to  the  principles  and  faith  of  those  who  won  it,  and  is 
prepared  to  surrender  the  whole,  whenever  the  tyranny  of  despotism  or 
the  intolerance  of  bigotry  demands  the  sacrifice. 

Boston,  August  1839. 


INVESTIGATION 


INTO    THE 


FIFTEEN    GALLON    LAW 

OF    MASSACHUSETTS. 


The  law  against  which  the  Memorialists  protested,  was  passed  the 
19th  of  April,  1838,  and  is  as  follows: 

An  Act  to  regulate  the  sale  of  Spirituous  Liquors. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives,  in  General  Court  assembled, 
and  by  the  authority  of  the  same,  as  follows  : 

Sec.  1.  No  licensed  innholder,  retailer,  common  victualler,  or  other  person,  except 
as  herein  after  provided,  shall  sell  any  brandy,  rum,  or  other  spirituous  liquors,  or  any 
mixed  liquor,  part  of  which  is  spirituous,  in  a  less  quantity  than  fifteen  gallons,  and 
that  delivered  and  carried  away  all  at  one  time,  on  pain  of  forfeiting  not  more  than 
twenty  dollars,  nor  less  than  ten  dollars,  for  each  offence,  to  be  recovered  in  the  man- 
ner and  for  the  use  provided  in  the  twenty-sixth  section  of  the  forty-seventh  chapter 
of  the  Revised  Statutes. 

Sec.  2.  The  Count)'  Commissioners  in  the  several  counties,  may  license  for  their 
respective  towns,  as  many  apothecaries  or  practising  physicians  as  they  deem  neces- 
sary, to  be  retailers  of  spirituous  liquors,  to  be  used  in  the  arts,  or  for  medicinal  pur- 
poses only  ;  and  the  mayor  and  aldermen  of  the  several  cities  may,  in  like  manner, 
and  for  like  purpose,  license  apothecaries,  as  retailers  for  their  respective  cities;  and 
the  Court  of  Commen  Pleas  in  the  County  of  Suffolk,  in  like  manner,  and  for  like 
purposes,  may  license  apothecaries  or  practising  physicians,  as  retailers  in  the  town  of 
Chelsea  ;  which  licenses  shall  be  granted  in  the  same  manner,  and  under  the  same 
restrictions  now  provided  by  law  for  licensing  retailers:  Provided,  That  the  number  of 
persons  so  licensed  shall  not  exceed  one  for  every  two  thousand  inhabitants,  and  in 
towns  containing  less  than  two  thousand  inhabitants,  one  person  maybe  licensed: 
And  provided,  further,  That  in  such  cities  and  towns  where  there  is  no  apothecary,  or 
practising  physician,  such  other  person  or  persons  may  be  appointed  as  aforesaid,  as 
may  be  deemed  proper  by  said  County  Commissioners;  and  no  person,  so  licensed, 
shall  sell  any  spirituous  liquor  to  be  drunk  in  or  about  his  premises,  on  pain  of  the  for- 
feiture provided  in  the  first  section  of  this  Act. 

Sec.  3.  All  licenses  hereafter  granted  to  innholders,  retailers  and  common  victual- 
lers, shall  be  so  framed  as  not  to  authorize  the  licensed  persons  ta  sell  brandy,  rum,  or 
any  other  spirituous  liquors  ;  and  no  excise  or  fee  shall  be  required  for  such  a  license. 

Sec  4.  The  provisions  of  all  laws  now  in  force,  inconsistent  with  this  Act,  are 
hereby  repealed. 

Sec.  5.     This  Act  shall  take  effect  on  the  first  day  of  July  next,  but  shall  have 
operation  upon  any  licenses  granted  previous  to  that  time. 

[Approved  by  the  Governor,  April  19,  1838.] 


MEMORIAL 

To    the    Senate    and  House    of  Representatives  in    General    Court 

assembled : 

When  a  law  has  been  enacted  involving  a  new  and  dangerous  principle  in  legisla- 
tion, unequal  in  its  operation,  at  best  of  extremely  doubtful  constitutional  right,  infffi- 
cTent  in  promoting  its  professed  end,  and  tending  to  endanger  a  good  moral  cause,  by 
exciting  opposition  and  stirring  up  division  as  to  the  means  for  promoting  that  cause, 
in  communities  where  all  good  citizecs  were  desirous  to  have  a  thorough  leform  in 
habit,  and  appetite  effected  by  moral  persuasion  ;  it  becomes  the  duty,  as  well  as  right 
of  the  people  to  ask  of  their  public  agents,  the  repeal  of  such  law. 

For  these  general  reasons,  the  undersigned  respectfully  ask  for  the  repeal  of  the  law 
passed  at  the^last  session,  entitled    "  An  Act  to  regulate  the  sale  of  Ardent  Spirits." 

The  title  of  that  Act,  we  submit,  is  a  misnomer,  for  instead  of  regulating,  as  all  acts 
on  this  subject  have  hitherto  assumed  to  do,  it  entirely  prohibits,  in  any  form  or  under 
any  circumstances,  to  be  used  except  in  the  arts  or  for  medicine,  the  sale  of  any  liquid, 
"  part  of  which  is  spirituous,"  unless  sold  to  the  extent  of  fifteen  gallons,  to  be  all 
delivered  and  carried  away  at  one  time 

The  question  is  not  whether  this  law,  if  enforced,  might  or  might  not  promote  tem- 
perance, but  whether  in  its  application  to  a  particular  description  of  property  and  to 
the  free  agency  of  the  citizen,  it  does  not  contravene  all"  sound  principles  applicable  to 
the  possession,  use,  and  enjoyment  of  property  as  a  whole,  and  the  exercise  of  plain 
personal  and  domestic  rights  that  lie  at  the  foundation  of  free  Government.  It  is  not 
a  question  merely  affecting  morals,  but  the  highest  constitutional  guarantees  of  prop- 
erty and  individual  liberty. 

We  ask  for  the  repeal  of  that  law,  on  these  grounds,  for  the  following  summary  of 
reasons : 

Because  it  assumes  to  prescribe  the  particular  uses  to  which  properly  lawfully 
acquired  shall  be  put;  prohibiting  a  use  lawful  in  itself ; — thus  following  the  article 
when  sold  to  the  home  and  the  closet  of  the  citizen  who  buys,  and  instituting  a  new 
system  of  espionage  upon  his  domestic  acts. 

Because  the  paramount  laws  of  Congress  authorize  the  importation  of  this  article  of 
rnarchandize  and  its  incorporation  into  the  mass  of  property,  all  of  which  is  under  a 
regulation  of -commerce,  which  power  is  wholly  ceded  to  the  United  States  by  the 
States,  and  therefore  no  State  can  prevent  such  importation  and  incorporation  into  the 
mass  of  property. 

Because  when  so  incorporated  it  becomes  like  all  other  merchandize  or  chattels  law- 
fully acquired,  a  part  of  that  property  which  the  Constitution  of  this  State  secures  to 
every  citizen,  and  guarantees  to  him  "  the  right  of  acquiring,  possessing  and  pro- 
tecting," and  in  the  "  enjoyment"  of  which  property,  like  all  other,  the  Constitution 
says  "each  individual  has  a  right  to  be  protected  by  Society." 

Because,  to  proscribe  by  a  State  law,  any  particular  description  of  merchandize  which 
under  the  United  States  Constitution  becomes  the  lawful  property  of  a  citizen  of  this 
State,  and  withhold  from  it  the  right  of  "  enjoyment"  secured  to  all  property,  on  the 
ground  that  excess  in  the  use  of  it  is  injurious  to  Society  ;  is  as  manifestly  an  evasion 
of  the  guarantee  of  property  rights,  as  it  would  be  to  deny  the  constitutional  protec- 
tion to  jewels,  plate,  equipage,  or  any  article  of  luxury,  the  excessive  use  of  which,  or 
its  use  at  all  by  the  poor,  tends  to  demoralize  and  impoverish  a  community. 

Because  when  the  Constitution  of  this  State  and  of  the  United  States  were  adopted, 
the  chattel  now  deprived  of  the  most  essential  quality  of  property  by  this  law.  was  fully 
recognized  as  possessing  all  the  immunities  attaching  to  other  property  ;  and  hence  it 
being  the  subject  of  lawful  property  under  the  supreme  law  of  the  land,  for  a  State  to 
deprive  it  of  value  by  denying  to  it  sale  and  transfer,  is  an  act  of  Nullification  of  the 
laws  of  Congress,  rendering  the  right  of  importation  useless  by  destroying  the  right 
to  sell. 

Because,  by  thus  singling  out  and  virtually  confiscating  one  species  of  property 
which  one  portion  of  Society  believe  it  is  unsafe  for  another  portion  to  hold,  except  in 
large  quantities,  an  arbitrary  and  despotic  precedent  will  be  established,  by  which  the 
6acred  right  of  acquiring,  possessing  and  enjoying  property,  may  be  narrowed  down  to 
the  mere  will  of  a  majority  of  the  Legislature  for  the  time  being,  as  to  the  kinds  and 
quantities  of  property  the;,'  may  think  it  safe  to  let  the  citizens  enjoy. 

Because  the  arguments  in  support  of  this   law,  drawn  from  the  legal  suppression  of 

gambling,  lewdness,  lottery  tickets  and  drunkenness,  are  not  applicable  to  a  law  which 

prohibits  the  sale  from  any  and  all  citizens  to  others,  of  a  specific   chattel  or  property, 

Sported  and  incorporated  into  the   mass  of  property  under  the  sanction  of  the   para- 

-^^nt  laws  of  the  land. 


Because  it  assumes  that  the  sale  of  a  particular  article  of  property  lawfully  acquired 
and  held,  is  a  crime,  and  then  only  punishes  the  alleged  offence  when  little,  but  legal- 
izes it  in  large  quantities,  thus  contravening  the  plainest  principle  of  right,  by  punish- 
ing crime  in  the  inverse  ratio  of  quantity. 

Because  this  law  in  effect  confiscates  property  lawfully  acquired,  in  the  hands  of  the 
purchaser  from  the  importer,  and  aunuls  the  importation  laws.  Hence  if  a  State  can- 
not directly  prevent  an  article  being  imported  and  sold  to  its  citizens  in  the  first  in- 
stance, would  it  not  be  unworthy  a  Legislature  to  adopt  any  evasive  or  cunning  device 
to  effect  indirectly  what  the  constitutional  compact  and  the  public  faith  due  to  the 
National  Laws,  prohibit  being  done  directly. 

Because,  so  long  as  lire  supreme  law  attaches  to  this  article  the  right  of  being  law- 
fully acquired,  there  can  be  no  just  distinction  made  as  to  the  enjoyment  and  use  of 
this  right,  beyond  its  abuse  and  the  mere  regulations  of  police,  which  does  not  apply  to 
all  other  property  in  the  hands  of  the  citizen. 

Because,  if  the  Constitution  of  the  United  States  does  not  prevent  a  State  from  pass- 
ing any  law,  however  arbitrary,  for  regulating  its  internal  commerce  between  citizens, 
the  Constitution  of  the  State  protects  the  citizen  in  the  enjoyment  of  all  lawfully 
acquired  property,  and  to  abolish  the  sale  of  it,  is  in  effect  a  law  of  confiscation,  be- 
cause the  value  of  property  depends  on  what  it  will  bring,  and  to  abolish  its  transfer, 
abolishes  its  value. 

Because  it  is  no  answer  to  this  objection  to  say  that  the  transfer  of  this  property  is 
abolished  only  in  given  quantities,  but  allowed,  unrestrained,  in  larger  quantities; 
which  is  only  saying  that  if  a  citizen  is  able  to  acquire  a  great  deal  of  property,  he 
shall  be  protected  in  the  enjoyment  of  its  use  and  sale,  but  if  he  is  able  to  acquire  only 
a  Tittle  property,  he  shall  be  punished  for  selling  it  to  another,  and  also  tire  individual 
who  sold  it  to  him. 

Because  the  Constitution  in  securing  the  right  to  keep  and  bear  arms,  does  not  more 
directly  involve  the  right  to  purchase,  and  sell  such  arms,  subject  only  to  proper  police 
regulations,  than  does  the  provision  that  each  citizen  shall  be  protected  in  the  enjoy- 
ment of  property,  lawfully  acquired,  involve  tire  right  of  purchase  and  sale.  Hence  if 
the  sale  of  lawfully  acquired  property  may  be  forbidden  to  prevent  its  tendency  to 
abuse  in  bad  hands,  may  not  the  Legislature,  should  the  Non  Resistance  Societies  de- 
mand it,  prohibit  the  sale  of  fire  arms,  in  small  quantities,  lest  they  should  be  used  ill 
self  defence. 

Because  this  law  makes  another  innovation  upon  settled  principles  governing  the 
rights  of  property,  in  prescribing  for  what  particular  purposes  of  domestic  and  private 
use,  property  shall  be  sold,  or  shall  not  be  sold.  It  says  that  any  quantity  of  the  pro- 
scribed property  may  be  sold  provided  it  is  to  be  used  in  arts  or  medicine — that  none 
shall  be  sold  under  a  given  quantity,  to  be  used  for  any  other  purpose  ;  but  that  it  may 
Be  sold,  to  any  extent  and  for  any  use,  over  a  given  quantity  at  a  time. 

We  ask  for  the  repeal  of  this  law,  then,  as  a  dangerous  precedent  affecting  the  rights 
of  property.     We  ask  for  that  repeal,  further — 

Because  it  is  a  departure  in  principle  from  the  ui'iform  course  of  legislation  upon  this 
subject,  under  the  Constitution,  which  has  been  to  regulate  and  not  to  prohibit;  former 
laws  being  founded  on  a  matter  of  police,  to  govern  places  of  resort,  preserve  order( 
and  punish  actual  violations  of  law. 

Because  it  is  a  false  principle  in  penal  enactments  to  punish  an  act,  not  criminal  in 
itself,  on  the  ground  that  it  tends  to  crime  in  another,  while  at  the  same  time  the  law 
freely  furnishes  this  tendency  to  crime  in  large  quantities,  and  only  prohibits  it  in 
smaller. 

Because  the  law  is  founded  on  another  position  as  false  as  it  is  unjust,  viz:  that  the 
moral  sense  is  not  as  strong  in  the  poor  as  in  the  rich,  and  that  the  former  cannot 
without  restraining  laws,  resist  temptations  that  may  be  safely  presented  to  the  latter, 
without  injury  to  the  common  good  ;  thus  assuming  the  odious  distinction  that  the 
Legislature  must  take  care  of  the  poor,  by  guarding  them  against  temptation,  whiie 
the  rich  may  be  safely  left  to  take  care  of  themselves. 

Because  it  is  a  libel  on  humanity  to  assume  that  the  poor  must  be  restrained  in  appe- 
tite and  the  rich  indulged,  when  in  fact  it  is  the  industrious  classes  with  small  means, 
who  are  trained  by  circumstances  to  self-denial  and  abstinence;  while  the  rich  are 
more  exposed,  from  habit  and  means,  to  excess  in  indulgence. 

Because  it  is  a  sumptuary  law  against  appetite,  always  odious  in  any  form,  but  espe- 
cially so  in  this  case,  where,  instead  of  restraining  the  luxury  of  the  wealthy,  it  is  aim- 
ed exclusively  against  the  appetite  of  the  poor,  and  freely  indulges  that  of  the  rich  ; 
thus  infringing  the  spirit  of  that  provision  which  declares  that  the  Constitution  was 
expressly  framed  "  to  provide  for  an  equitable  mode  of  making  laws." 

Because  voluntary  principle  is  the  only  safe  reliance  in  a  free  government,  for  the 
support  of  religion  and  the  advancement  of  moral  causes;  and  the  professed  object  of 
this  impossible  law,  viz:  the  suppression  of  appetite  in  a  particular  class,  is  as  mucu 
beyond  the  reach  of  penal  laws,  as  are  the  conscience  and  the  internal  will  of  man. 


8 

Becaust  it  is  a  law  against  moral  agency,  imposing  punishment  not  upon  anj  crime 
or  offence,  but  upon  an  indulgence  in  appetite  that  may  lead  to  crime. 

Because  the  argument  that  Society  has  a  right  to  prevent  pauperism  through  intem- 
perance its  greatest  source,  no  more  justifies  this  law,  than  it  would  a  law  to  punish 
any  citizen  who  should  keep  or  use  the  article  at  home— and,  moreover,  this  argument 
is  a  libel  on  a  majority  of  the  people,  in  assuming  that  the  pauperism  which  is  engen- 
dered by  intemperance,  is  confined  to  those  who  cannot  purchase  fifteen  gallons  at  a 
time,  while  the  higher  classes,  who  indulge  at  their  tables  and  sideboards,  are  in  no 
danger  of  becoming  a  public  charge. 

Because  this  law  is  an  alarming  precedent,  tending  to  revive  that  series  of  arbitrary, 
bigoted  and  outrageous  restraints  upon  personal  freedom,  domestic  rights  and  private 
opinions,  known  as  the  Blue-Laws  of  the  old  Colonies  ;  and  on  this  principle,  when- 
ever any  sect  in  morals  or  diatectics  happen  to  get  a  majority  in  the  Legislature,  they 
may  pass  laws  to  prohibit  and  punish  all  the  indulgences  they  think  proper  to 
condemn. 

Because  there  is  obviously  a  dangerous  tendency  in  the  times  to  intemperate  excess, 
in  carrying  out  benevolent  and  noble  objects  of  reform,  which  threatens  to  drive  the 
sober  and  prudent  and  reflecting  from  all  such  useful  associations— wherefore  v.e  con- 
ceive it  is  peculiarly  the  duty  of  the  Legislature  not  to  countenance  a  doubtful  and 
vexed  measure  of  reform  having  this  tendency,  and  which,  if  persisted  in,  will  encour- 
age those  who  run  into  the  wildest  theories  of  moral  restraint,  to  get  up  combinations 
and  parties  to  force  their  particular  creeds  into  the  form  of  law. 

For  these,  among  numerous  other  reasons,  v.e  address  ourselves  to  the  calm  good 
sense  of  the  Representatives  of  the  people.  We  pray  them,  as  friends  of  temperance, 
not  to  endanger  the  healthful  moral  influences  that  were  carrying  forward  that  cause 
as  rapidly  as  the  condition  of  society  would  admit.  We  ask  them  not  to  forget  that 
thouo-h  temperance  is  a  noble  cause,  Liberty  and  Equal  laws  are  nobler.  We  assure 
them  that  this  law  must  fail  of  its  professed  object,  and  will  not  succeed  in  restraining 
appetite  which  will  be  indulged  by  combinations  and  evasions  to  a  greater  extent  than 
without  this  ineffectual  attempt  at  restraint. 

We  ask  them  not  to  compel  those  who  have  uniformly  sustained  the  moral  cause  of 
temperance  and  still  desire  its  success,  to  rally  against  this  measure  in  defence  of  a 
higher  principle  than  temperance  itself,  the  liberty  of  the  citizen.  Very  many  of  the 
devoted,  practical  friends  of  temperance,  solemnly  hold  this  law  to  be  a  violation  of 
fundamental  principles.  They  deny  its  right,  they  doubt  its  constitutionality,  they 
are  satisfied  of  its  inexpediency,  and  that  it  will  react,  and  retard  the  cause  rather  than 
advance  it.  They  cannot  consent  to  do  wrong  that  good  may  possibly  come.  They 
will  rather  wait  for  moral  causes  to  operate,  than  force  the  end  they  wish  to  accom- 
plish, at  the  expense  of  reaction  and  the  soundest  and  plainest  principles  of  Equal 
Rights. 

Wherefore  we  pray  the  Legislature  to  repeal  this  law,  and  thus  remove  from  the 
Statute  Book,  the  first  act  of  a  Sumptuary  law,  which  has  been  placed  there  since  the 
adoption  of  the  Constitution. 


MR.  HALLETT'S  OPENING  ARGUMENT, 

B.  F.  Hallett  opened  the  inquiry  on  the  part  of  the  Memorialists. 
His  purpose  was  to  present  the  reasons  and  facts  on  which  the  repeal  of  the 
law  of  1838,  prohibiting  the  retail  sale  of  spirituous  liquors,  was  asked  for 
in  the  Memorial,  and  his  wish  was  to  confine  the  investigation  strictly  to 
the  matter  in  hand,  viz.  whether  the  law  in  question  ought  to  be  repealed 
or  not. 

We  disclaim  the  issue  of  Temperance  and  Intemperance.  It  would  dis- 
credit the  intelligence  of  the  Legislature  to  treat  this  subject  as  if  they  de- 
sired to  be  instructed  through  a  committee  as  to  the  blessings  of  temper- 
ance or  the  evils  of  intemperance.  The  question  is  not  the  evil,  but  the 
remedy :  whether  this  law  is  a  remedy  for  the  evils  that  are  connected  with 
ntemperance  in  society,  and  whether  it  is  such  a  law  as  ought  to  be  enact- 
ed under  any  circumstances.  I  am  aware  that  the  attempt  will  be  made 
^  the  other  side,  to  represent  the  opponents  of  this  law  as  the  opponents 


9 

of  Temperance,  and  thus,  by  making  a  false  issue,  preoccupy  the  favorable 
opinion  of  the  Committee.  In  the  outset  therefore,  I  protest  against  this 
assumption  ;  and  so  far  as  the  evils  of  intemperance  are  concerned,  the  sup- 
porters of  the  law  may  if  they  choose,  take  our  general  cognovit,  and  thus 
relieve  the  Committee  from  the  wide  range  of  inquiry  which  that  mode  of 
treating  the  subject  would  lead  to.  The  Memorial  asks  for  the  repeal  of 
the  Law  on  the  very  ground,  among  other  objections  to  it,  that  it  is  adverse 
to  temperance,  and  endangers  the  progress  of  a  good  moral  cause.  On  this 
point  we  shall  have  much  to  say,  and  many  facts  to  present. 

The  question  is  simply  whether  so  long  as  the  laws  sanction  the  importa- 
tion, acquisition  and  use,  of  this  species  of  property  ;  a  moral  act  of  self-de- 
nial, lutal  abstinence  from  the  use  of  spirituous  liquors,  shall  be  attempted 
to  be  enforced  by  a  law  of  prohibition  and  penalty,  or  be  left  to  moral  influ- 
ences under  general  laws  of  regulation.  The  object  of  all  former  laws  on 
this  subject  has  been  to  promote  temperance,  by  regulating  the  sale  to  all  : 
the  aim  of  this  law  is  to  enforce  total  abstinence  in  a  part,  by  prohibiting 
the  sale  to  one  class  and  allowing  it  to  another. 

The  friends  of  the  law  claim  an  authority  for  its  enactment  under  the  in- 
junctions in  the  State  Constitution.  To  show  that  this  claim  has  no  foun- 
dation in  the  Constitution,  it  is  only  necessary  to  refer  to  the  plain  distinc- 
tion between  temperance  and  total  abstinence  ;  the  one  meaning  a  moder- 
ate use  of  an  article  of  appetite  or  luxury,  and  the  other  an  entire  abstinence 
from  such  use.  Temperance,  when  applied  to  any  act  or  indulgence,  im- 
plies that  the  virtue  of  temperance  consists  not  in  the  absolute  denial,  but 
in  the  moderate  use.  It  cannot  therefore  be  applied  to  any  indulgence, 
wrong  in  itself.  We  do  not  say  that  men  should  be  temperate  in  gambling, 
vice,  or  crime  ;  but  that  they  should  abstain  altogether,  because  any  partic- 
ipation, however  moderate,  is  criminal.  Consequently,  by  temperance,  our 
fathers  meant  a  moderate  use  of  the  luxuries  of  life,  and  as  the  Constitution 
must  be  interpreted  by  the  manifest  intent  of  those  who  framed  it,  it  is  plain 
that  they  never  could  have  intended  to  enforce  total  abstinence  from  any 
description  of  food  or  drink,  under  the  denomination  of  Temperance.  This 
word  which  is  used  but  once  in  the  Constitution,  is  as  applicable  to  eating 
as  drinking,  and  it  might  with  equal  propriety  be  urged  that  the  Constitu- 
tion enjoins  upon  the  Legislature  to  make  laws  to  enforce  total  abstinence 
from  all  kinds  of  food  not  indispensible  to  life,  as  that  it  authorizes  such 
laws  in  relation  to  drinks. 

The  State  Constitution  speaks  of  temperance  but  no  where  of  total  absti- 
nence. The  law  in  question  is  designed  to  enforce  the  latter,  upon  a  partic- 
ular class,  who  have  not  the  means  to  get  over  it;  and  if  the  Constitution  is 
to  be  appealed  to  for  its  sanction  it  must  be  shown  that  by  virtue  of  the  Con- 
stitution the  enforcement  of  total  abstinence  by  law  comes  within  the  prov- 
ince of  the  Legislature. 

As  the  Constitution  is  so  often  referred  to,  and  by  a  disingenuous  per- 
version of  this  word  Temperance  from  its  true  meaning,  wrested  into  a 
seeming  sanction  of  any  law,  however  arbitrary,  to  prohibit  the  moderate 
use  or  sale  of  alcohol,  it  is  proper  to  set  this  part  of  the  inquiry  to  rest  in 
the  outset. 

The  State  Constitution  on  Temperance. 

The  only  use  made  of  this  word  in  the  Constitution  is  the  following. 

"Art.  18.     A  frequent  recurrence  to  the  fundamental  principles  of  the       f 
Constitution,  and  a  constant  adherence  to  those  of  piety,  justice,  modera-     ' 
tion,  temperance  and  frugality,  are  absolutely  necessary   to  preserve- 
the  advantages  of  liberty,  and  to  maintain  a  free  government.     The  peof*5 

/ 


10 

have  a  right  to   require   of  their  lawgivers   and  Magistrates   an  exact  arid 
constant  observance  of  them  in  the  formation    and  execution  of  the  laws." 
If  this  sanctions  a  prohibitory  law  against  beverage  or  food,  the  "constant 
observance"   of  it  enjoined,  would  require  that  total  abstinence  should  be 
regarded  in  forming  all  the  laws.     This  is  sufficient  to  show  that  the  Tan- 
perance  here  referred  to  is  a  quality  ;   a  virtue  the  opposite  to  excess  in  all 
things.     With   as  much  propriety  might  we  argue  that  because  the  Consti- 
tution enjoins  a  constant  adherence  to  frugality,  therefore  the  Legislature 
ought  to  pass  laws  restraining  the  expenses  of  living,  and  prohibiting  the  sale 
of  all  unnecessary  articles  in  housekeeping,  to  save  people  from  the  tempta- 
tion of  running   in  debt,  getting  insolvent   and  committing  suicide.     As 
well  might  we  argue  from  this  article  that  the  moderation  and  Justice  it  en- 
joins in  the  making  of  laws,  render  it  the  duty  of  the  Legislature  to  repeal  a 
law  so  immoderate  and  unjust  as  the  prohibitory  law  under  consideration. 
As  well  might  we  say  that  we  ought  to  have  an  established  religion  by  law, 
because  the  observance  of  piety  is  enjoined.    The  "  fundamental  principle" 
of  equality,  is  the  first  principle  to  be  referred  to  in  making- laws;  and  this 
principle  the  law  of '38  violates.    How  then  can  the  ISth  article  support  it? 
Another  part  of  the  Constitution  relied  on  by  the  advocates  of  the  law,  is 
the  4th  .Article  of  the  1st   Chapter  in    which   "full  power  is  given  to  make, 
ordain  and  establish  all  wholesome  and  reasonable  orders,  laws,  statutes  and 
ordinances,  necessary  for  the  good  administration  of  the  Commonwealth." 
If  this  is  to  be  construed  without  limit,  it  sets  up  a  claim  of  irresponsible 
power  in  the   Legislature,  and  abrogates  the  Constitution  itself.     If  other- 
wise, it  is  begging  the  question  to  assume  that  this  is  a  wholesome  and  reas- 
onable law.     It  must  not  only  be  shown  to  be  wholesome  and   reasonable, 
but  to  be  "necessary  for  the  good  administration  of  the  Commonwealth." — 
To  be  reasonable,  it  must  be  equal  in  its  operation  on  all  classes  of  citi- 
zens. 

The  2d  Section,  Chap.  5,  has  also  been  pressed  into  the  service  of  this 
law,  which  says, — "It  shall  be  the  duty  of  Legislators  and  Magistrates  to 
countenance  and  inculcate  the  principles  of  humanity  and  general  benevo- 
lence, public  and  private  charity,  industry  and  frugality,  honesty  and  punc- 
tuality in  dealings,  sincerity,  good  humor,  and  all  social  affections  and  gen- 
erous sentiments  among  the  people." 

The  argument  attempted  to  be  drawn  from  this  is,  that  because  intemper- 
ance is  adverse  to  the  principles  here  recommended,  therefore  the  Legisla- 
ture must  pass  laws  to  enforce  total  abstinence.  As  well  might  it  be  argu- 
ed that  because  wine  is  said  to  make  men  generous,  good  humoured  and 
social,  therefore  the  Legislature  ought  to  encourage  its  convivial  use. 

But  to  place  this  matter  beyond  dispute,  we  have  a  contemporaneous  ex- 
position of  the  intent  and  meaning  of  the  founders  of  the  Constitution,  which 
is  the  soundest  and  safest  rule  of  construction,  as  to  delegated  power.  The 
Convention  that  framed  the  Constitution  of  Massachusetts  assembled  in 
1779.  Two  years  before  that,  in  1777,  the  General  Court  of  Massachusetts 
composed  of  many  of  the  same  individuals  who  were  members  of  the  Con- 
vention in  '79,  passed  a  law  to  the  following  effect,  which  may  be  found  in 
the  first  Vol.  Resolves  of  Massachusetts  Bay  for  February  1777,  p.  33. 

"Resolve  to  prevent  the  exportation  of  rum  and  other  articles  out  of  this  State,  as 
well  by  land  as  water,  passed  Feb.  7,  1777. 

"Whereas,  the  Rum,  &c.  now  in  this  State  are  all  needed  for  the  supply  of  the  army 
and  the  inhabitants  of  this  Stale,  It  is  therefore  resolved  that  all  exportation  of  Rum, 
Molasses,  Sugar,  Cotton  Wool,  Sheepswool,  flax,  salt,  coffee,  cocoa,  chocolate,  linen, 
cotton  and  linen,  woollen  and  cotton  goods  of  all  kinds,  provisions  of  all  and  every  sort 
shoes,  hides,  deer  skins,  sheep  skins,  and  Leather  of  all  kinds,  as  well  by  land  as  by  wa- 
ter, from  every  port  of  the   State,  be  stopped  except  to  the  different  ports  of 'this  State. 

And  if  any  vessel  shall  be   found  having  any  quantity  of  rum,  more  than  fit)  callons 


1 


11 

im  a  vessel  of  80  tons,  for  a  three  months  voyage,  and  in  that  proportion  for  a  Itirger  or 
smaller  vessel  and  on  a  longer  or  shorter  voyage,  being  'outward  bound  or  found  at  sea. 
having  sailed  from  any  port  in  this  State  for  any  part  of  the  world  without  this  State  ; 
such  vessel  shall  be  a  lawful  prize  for  any  person  who  shall  take  the  same  ;  and  shall 
be  condemned  and  sold  in  the  manner  provided  for  sale  of  vessels  taken  in  carrying 
supplies  to  the  enemy. 

And  if  the  Committee  of  Correspondence,  Instruction  and  Safety,  of  any  towns  in 
this  State  shall  suspect  that  any  team  is  loaded  with  such  article  to  be  transported  out 
of  the  State,  said  Committee  are  empowered  and  directed  to  stop  all  such  teams  till 
they  can  make  proper  inquiry,  and  to  seize  and  file  an  information  against  the  same, 
as  forfeited,  one  half  to  the  Committee  and  the  other  half  to  the  State. 

Provided  this  resolve  shall  not  prevent  the  carrying  of  the  article  from  this  to  any 
neighbouring  State,  as  purchased  at  ordinary  retail,  either  for  the  consumption  of  indi- 
viduals or  single  families.  And  it  is  hereby  recommended  to  the  good  people  of  this 
State  to  afford  all  possible  aid  to  the  Committees  aforesaid  to  enable  them  to  carry 
these  resolves  into  effectual  execution." 

Resolved,  that  if  it  appear  any  article  has  been  transported  contrary  to  this  Resolve, 
the  owner  shall  forfeit  the  value,  to  be  recovered  by  action  of  debt. 

Mr.  Hosmer  is  directed  to  procure  2000  copies  to  be  printed,  and  cause  the  same  to 
be  printed  in  the  Boston  Newspapers." 

Jn  Council,  March  2G,  1777,  it  was  voted, 

Whereas,  it  is  of  great  importance  that  there  should  be  ample  supply  of  rum,  suo-ar, 
molasses,  cocoa,  coffee,  cotton,  wool  and  salt,  for  the  use  of  the  army,  and  every  imped- 
iment to  their  importation  ought  immediately  to  be  removed,  therefore  Resolved,  that 
Benjamin  Greenleaf,  Thomas  Cushing  and  John  Taylor,  be  a  committee,  <Vc.  to  con- 
eider  the  expediency  of  repealing  an  embargo  upon  all  vessels  in  this  State,  and  to  con- 
sider what  other  measures  are  proper  to  be. taken  for  procuring  a  supply  of  the  articles 
above  mentioned. 

In  the  House,  Mr.  Dalton,  JudjTe  Cushing,  B.  Thompson,  and  Mr  Phillips  arc  join- 
ed, Walter  Sheever,  in  place  of  Greenleaf. 

Here,  in  an  enumeration  of  all  the  staple  necessaries  of  life,  rum  is  placed 
foremost  as  indispensible  for  the  use  of  the  army  in  fighting  the  battles  that 
won  our  liberties  ;  and  yet  we  are  now  told  that  the  same  men  who  passed 
that  law,  two  years  after  framed  a  Constitution  which  enjoined  it  upon  the 
Legislature  to  prohibit  the  sale  of  that  article,  under  fifteen  gallons,  and  to 
enact  laws  to  enforce  total  abstinence  from  its  use,  by  all  except  men  of 
quality  and  estates  ! 

I  have  no  disposition  Mr.  Chairman,  to  join  with  our  patriotic  forefathers 
in  their  eulogy  upon  rum  as  the  first  article  in  a  list  of  the  necessaries  of 
life,  or  as  necessary  at  all,  under  any  circumstances  as  a  beverage  ;  but  to 
.such  extremes  are  ultra  notions  on  this  subject  now  carried,  that  it  would 
seem  incredible  that  the  world  could  have  stood,  or  a  virtuous  community 
have  been  found  in  it,  with  the  toleratiou  of  rum;  and  yet  these  Resolves 
were  passed,  and  were  practiced  upon,  by  the  purest  patriots  and  the  wisest 
and  best  men  of  our  Commonwealth,  who  sacrificed  every  consideration  of 
self  to  the  public  good,  and  the  loss  of  whose  simple  virtues  is  but  sadly 
supplied  by  the  mock  morals  and  pharisaical  pretensions  of  the  present  day- 
After  this  exposition  of  facts,  the  friends  of  this  law  must  look  to  some 
other  source  than  the  Constitution  for  enjoining  its  adoption  as  a  duty,  upon 
the  Legislature.* 

"  Mr.  Hallett  intended  to  have  stated  another  fact  nearly  contemporaneous  with  the 
Constitution.  The  Convention  of  355  Delegates,  who  adopted  the  U.  S.  Constitution 
in  1788,  voted  at  the  close  of  their  labors,  to  proceed  to  the  State  House  to  proclaim  the 
ratification  and  take  an  affectionate  leave  of  each  other.  An  invitation  from  a  number 
of  the  inhabitants  of  Boston  requesting  the  members  of  the  Convention  to  take  refresh- 
ments at  the  Senate  Chamber,  when  the  ratification  should  be  declared,  was  read,  and 
thereupon  voted,  that  the  thanks  of  the  Convention  be  given  to  the  inhabitants  of 
Boston  for  their  polite  invitation,  and  that  the  Convention  will  attend  as  requested. 

The  Boston  Centinel  of  February  9,  1788,  gives  the  following  particulars  in  con- 
formation of  the  views  the  framers  of  the  Constitution  took  of  temperance  : 

"The  whole  Convention  having  been  previously  invited,  partook  with  a  number 
the  respectable  citizens,  of  a  decent  repast,  prepared  in  the  Senate  Chamber,  and  sw 


nu 
of 

jn-         .' 


12 

General  Principles. 

I  will  now  proceed  to  state  the  general  grounds  on  which  we  object  to 
the  law  of  1838,  and  ask  for  its  repeal. 

It  involves  a  novel  and  dangerous  principle  in  legislation  as  applied  to 
personal  rights,  and  acts  lawful  in  themselves. 

It  is  of  doubtful  constitutional  right,  and  directly  unconstitutional,  as  an 
unequal  law,  and  as  an  infringement  of  the  power  of  Congress  to  collect 
revenue. 

It  aims  at  an  end  the  law  cannot  reach,  and  is  ineffectual  in  promoting 
its  professed  end. 

It  endangers  a  good  moral  cause  by  exciting  opposition  and  stirring  up 
division  and  party  strife. 

It  divides  the  community  politically  in  an  injurious  controversy  as  to  the 
means  for  promoting  total  abstinence,  whether  moral  and  persuasive,  or 
penal  and  coercive. 

It  creates  a  new  conflict  in  society  and  raises  up  two  strong  opposing 
parties,  where  before,  all  good  citizens  were  united  in  desiring  a  thorough 
reform  in  the  customs  of  society,  and  the  indulgence  of  appetite. 

It  retards  and  diverts  from  their  true  course  the  healthful  moral  influen- 
ces that  were  carrying  forward  the  temperance  reform  as  rapidly  as  the  con- 
dition of  society  and  the  permanency  of  the  cause  would  admit. 

It  compels  those  who  have  uniformly  sustained  the  temperance  reform  as 
a  moral  cause,  but  who  disclaim  its  attempted  control  of  legislation  by  po- 
litical action  ;  to  rally  against  this  law  in  defence  of  higher  principles  than 
temperance;  the  liberty  of  the  citizen,  and  the  fundamental  rights  of  property. 

It  thus  tends  unavoidably,  to  identify  actual  opposition  to  Abstinence  as 
a  moral  cause,  with  the  just  opposition  to  an  alarming  encroachment  by  this 
specious  legislation,  upon  personal  rights  and  first  principles,  that  lie  at  the 
foundation  of  free  government. 

It  compels  those  who  are  jealous  of  popular  freedom  and  the  right  of  self 
government,  to  remember  that  Liberty  and  License  laws  have  subsisted  to- 
gether for  centuries,  but  Liberty  and  arbitrary  laws,  never. 

It  disregards  the  rational  progress  of  moral  causes,  and  impatiently  at- 
tempts.a  legal  enforcement  of  self  denial,  at  the  expense  of  inevitable  reac- 
tion, and  without  respect  to  sound  and  settled  principles  of  equal  rights,  or 
equal  laws. 

It  seeks  for  precedents  of  justification  in  the  most  doubtful  and  long 
exploded  applications  of  legislation  to  restrict  rights  and  control  personal 
action;  and  is  a  backward  movement  in  government,  assuming  to  make 
men  abstemious  as  bigotry  formerly  undertook  to  make  men  religious,  by 
pains  and  penalties. 

The  law  is  moreover  based  on  a  false  principle  of  legislation ;  false  be- 
cause it  cannot  be  applied  to  property  or  right  in  general  ;  and  false,  be- 
cause it  becomes  absurd  and  unbearable  the  moment  it  is  attempted  to  car- 
ry it  out  to  its  legitimate  and  unavoidable  conclusions. 

The  doctrine  of  the  law  is  this — that  because  drinking  a  certain  liquid 
to  excess  injures  the  individual,  and   he  injures  society,   therefore   the  law 


a  spirit  of  joy,  union  and  urbanity  was  diffused,  as  if  continued,  must  be  attended  with 
the  most  happy  consequences.  The  toasts  given  were  truly  conciliatory,  and  were 
drank  with  sincerity,  by  every  one  present." 

When  President  Washington  made  his  grand  entry  into  Boston,  October  ^9,  I7S9, 
one  of  th«  most  prominent  in  the  display  of  trades  and  occupations  in  the  immense 
procession  that  welcomed  him,  was  the  whole  body  of  Boston  distillers,  preceded  by 
Mr.  Thomas  Hill,  with  banners.  Device  on  the  flags,  a  Still  with  the  Distillers  Arms. 
Motto,  "drop  as  rain,  distil  as  dew-" 


13 

must  prohibit  it  as  a  beverage.  If  this  position  is  sound,  it  must  follow 
that  wherever  it  can  be  shown  that  any  article  of  luxury  of  food  or  drink  is 
unnecessary  and  injurious  to  an  individual  or  his  family,  the  law  must  inter- 
pose and  prohibit  its  use  by  all  those  who  cannot  afford  to  ruin  themselves 
without  ruining  their  families. 

Again,  it  is  a  law  originating  not  in  philanthropy,  and  benevolence,  but 
in  distrust  of  moral  influences  and  contempt  of  the  capacity  of  men  with 
small  means  to  practice  wholesome  self  denial. 

It  is  a  law  against  moral  agency,  assuming  not  as  all  other  laws  do,  onlv 
to  punish  crime  when  committed,  but  to  restrain  by  penal  enactment,  the 
exercise  of  discretion  in  the  moderate  use  of  a  beverage,  because  it  may  be 
used  to  excess,  thus  denying  to  one  class  a  right,because  others  use  that 
right  to  do  wrong. 

It  punishes  the  moderate  sale  as  a  crime  in  order  to  prevent  the  temper- 
ate use,  and  yet  does  not  punish  the  use  at  all  until  it  amounts  to  drunken- 
ness, when  in  fact,  it  is  the  use  and  not  the  sale  that  is  the  cause  of  drunk- 
enness. 

The  seller  is  only  accessory  to  the  use  ;  the  user  commits  the  overt  act, 
yet  the  first  is  punished,  though  no  injury  is  proved  to  follow  his  act,  while 
the  latter  is  punished  only  in  case  of  excess  and  positive  wrong  done. 

As  well  might  the  law  punish  those  who  keep  gambling  houses  and  im- 
plements, and  not  those  who  gamble,  as  to  punish  those  who  sell  and  not 
those  who  drink. 

This  law  assumes  to  enforce  prevention  of  an  act,  not  wrong  in  itself, 
but  on  the  ground  that  it  may  tend  to  wrong  in  another  ;  thus  punishing 
an  innocent  act  in  one  man  without  rpgard  to  criminal  intent,  and  only  be- 
cause another  may  commit  a  crime  ;  as  if  the  law  should  punish  him  who 
innocently  sells  edge  tools   because  they  may  be  used  to  maim  or  murder. 

It  divides  society  morally  by  a  false  and  invidious-  line — assuming  that 
self  control  is  coextensive  with  pecuniary  means,  denying  its  existence  as  a 
rule  of  action  to  be  trusted  in  those  possessing  small  means,  but  admitting 
its  unlimited  and  safe  influence  with  those  of  large  means. 

It  affirms  the  necessity  of  restraining  the  appetite  and  taking  care  of  the 
morals  of  the  poor  by  law,  but  leaves  the  rich  to  take  care  of  their  own  mor- 
als and  appetites. 

It  is  a  sumptuary  law  ;  a  species  of  legislation  always  odious  in  the  most 
arbitrary  governments,  and  never  to  be  tolerated  in  a  free  one.  It  ia  a 
sumptuary  law  even  in  the  technical  sense  of  that  term,  for  it  assumes  that 
a  certain  article  of  ordinary  consumption  is  unnecessary,  and  undertakes  to 
prohibit  the  indulgence  in  it  by  one  class  of  society  who  heretofore  have 
had  it  in  any  quantity  they  chose  to  buy  it. 

It  is  therefore  a  sumptuary  law  in  restraint  not  of  excess,  but  of  a  sup- 
posed tendency  to  excess  in  the  indulgence  of  an  appetite  not  unlawful  in 
itself. 

It  is  moreover  a  sumptuary  law  to  restrain  indulgence  and  unnecessary 
expense,  exactly  in  the  inverse  ratio  of  the  means  to  indulge  and  buy. 

It  prohibits  an  act  (the  sale  of  a  pint  of  ardents)  which  is  just  as  inno- 
cent as  the  sale  of  fifteen  gallons,  which  it  allows  ;  and  while  it  claims  au- 
thority to  prohibit  or  restrain,  solely  on  the  ground  of  the  injurious  tendency 
of  an  act  innocent  in  itself,  it  most  absurdly  prohibits  only  in  small  quanti- 
ties and  permits  in  large  quantities.  Thus  it  undertakes  to  punish  an  al- 
leged offence  to  society  in  the  inverse  ratio  of  quantity. 

It  differs  from  all  former  laws 
this  prohibiting  ;  the  former    limi 
but  never  the  quantity  they  migh 
six  cents  the  same  privilege  of  buying  according  to  his  means,  as  to  the  m*rt 


/erse  ratio  of  quantity.  . 

on  this  subject,  the  former  regulating  and     ^r 
liting   the  persons   who  might   lawfully  seller 
ht  sell — the    former    securing  to  a    man  ojr 


14 

of  millions,  while  this  law  outlaws  every  man  who  cannot  command  at  one 
time,  at  least  six  dollars. 

This  law  undertakes  to  prohibit  the  traffic  on  the  ground  of  common 
good,  and  yet  prohibits  it  only  to  those  who  cannot  raise  six  or  ten  dollars 
at  a  time  for  an  unnecessary  expense ;  as  if  the  common  good  required  that 
only  common  men  should  be  restrained  by  pains  and  penalties. 

The  only  evil  to  society  which  can  warrant  any  law  regulating  this  arti- 
cle as  distinguished  from  other  articles  of  food  or  drink,  is  the  intemperate 
use.  That  evil,  it  is  assumed,  grows  out  of  the  moderate  use,  yet  the  law 
does  not  punish  the  moderate  use  at  all,  only  the  moderate  sale. 

Hence  if  the  public  good  demands  the  suppression,  by  law,  of  all  tenden- 
cies to  excessive  use,  it  should  punish  the  moderate  user  as  well  as  the 
moderate  seller. 

If  there  were  no  sale  by  retail,  still  the  moderate  use  would  continue, 
but  if  there  were  no  use  there  would  be  no  sale  at  all.  The  law  there- 
fore, if  it  means  to  suppress  the  evil,  should  go  directly  to  its  source,  the 
use,  and  suppress  that  by  pains  and  penalties.  The  fact  that  it  cannot  do 
bo,  is  conclusive  that  the  attempted  prohibition  of  sale,  while  the  use  is 
permitted  by  law,  is  founded  on  a  false  and  ineffectual  application  of  legis- 
lation. 

The  law  is  invidious  and  unequal,  because  it  is  so  framed  as  in  intent 
and  practice,  if  enforced,  to  be  a  prohibition  to  one  class  and  a  free  indul- 
gence to  another. 

It  is  invidious  as  to  the  kinds  of  beverage  to  which  it  is  applied  ;  for  it 
says  to  those  who  prefer  alcohol  in  the  form  of  rum,  brandy  and  gin,  that 
they  must  be  restrained,  while  it  says  to  those  who  prefer  alcohol  in  the 
form  of  wine,  that  they  may  be  freely  indulged  in  any  quantity. 

It  is  invidious  because  those  who  made  the  law  have  reserved  to  them- 
selves the  means  of  indulgence,  by  not  extending  the  restriction  to  a  quan- 
tity beyond  their  reach  at  any  time,  while  they  have  prohibited  the  sale  of 
it  in  quantities  within  the  compass  of  the  means  of  a  large  portion  of  their 
constituents. 

If  it  be,  as  is  contended,  only  a  partial  prohibition,  then  it  is  a  partial 
law  ;  for  if  the  common  good  demands  prohibition  at  all,  to  be  equal  and 
just,  it  must  be  universal,  both  in  selling  and  baying.  Ability  in  means, 
to  do  an  act  on  a  large  scale,  cannot  make  that  act  venial,  while  the  same 
act,  on  a  small  scale,  by  those  of  small  means,  is  made  a  crime. 

These  are  some  of  the  leading  principles  in  morals,  equity,  and  law, 
which  demonstrate  that  the  Act  of  1838  prohibiting  the  sale  of  an  article 
of  merchandize  in  less  than  fifteen  gallons  at  a  time,  is  based  on  a  false 
doctrine  in  legislation. 

Property  Rights. 

The  law  is  equally  odious  and  objectionable  in  its  application  to  prop- 
erty rights,  for  the  following  reasons  : — 

It  singles  out  a  particular  description  of  lawful  property  and  merchan- 
dize, and  deprives  it  of  its  ordinary  uses  and  sale  by  force  of  law. 

It  thus  interferes  with  and  abrogates,  as  to  this  kind  of  lawful  property, 
the  universal  right  of  acquiring,  possessing  and  enjoying  property.  In  this 
respect  it  evades,  and  arbitrarily  suspends,  and  as  I  hold,  openly  violates  one 
of  the  fundamental  immunities  of  the  State  Constitution. 

It  also  evades,  and  in  effect  nullifies  the  United  States  Laws  of  importa- 
tion, because  the  power  it  claims  to  prohibit  the  sale  of  property  except 
from  the  importer  to  the  next  hand,  if  enforced,  would  in  fact  destroy  im- 
portation. 

It  prescribes  a  limited  use  to  which  alone  lawful   property  shall  be  put, 


15 

prohibiting  its  ordinary,  lawful  use,  and  that  not  by  punishing  the  use  hut 
by  punishing  the  sale  for  that  use. 

It  thus  makes  even  a  licensed  seller  responsible  for  the  particular  use  to 
which  his  customer  puts  the  article,  subjecting  him  to  a  legal  inquisition  as 
to  knowledge  he  had  of  the  intended  lawful  use  when  he  sold  the  article  ; 
subverting  all  principles  of  criminal  jurisprudence  which  never  punishes 
intent  in  one  man  connected  with  the  act  of  another,  unless  that  intent  is 
accessary  to  a  criminal  act. 

It  is  absurd  and  contradictory  in  the  application  of  prohibition  of  the 
use  of  this  property  :  1st,  permiting  it  to  be  sold  in  any  quantity  to  be  used 
in  arts  and  medicine;  2d,  punishing  the  sale  for  any  other  use,  in  small 
quantities;  and  3d,  permitting  the  sale  in  large  quantities  for  any  use 
whatever. 

It  assumes  that  the  sale  is  a  wrong  to  society.  It  then  sanctions  this 
wrong  in  gross,  or  when  committed  to  indulge  the  rich,  and  punishes  it 
only  in  detail,  or  when  committed  to  indulge  the  poor. 

It  allows  an  unrestrained  indulgence  to  all  who  can  enjoy  it  largely,  and 
denies  it  to  others  merely  because  they  can  procure  it  only  sparingly,  or  in 
small  quantities  at  a  time. 

It  is  admitted  by  those  who  sustain  this  law,  that  the  evil  is  not  in  the 
article,  which  is  no  nuisance  or  offence  in  itself,  like  infected  goods  or  taint- 
ed provisions,  but  in  the  appetite  for  its  excessive  use.  We  say,  therefore, 
that  you  cannot  on  any  known  principles  of  equal  and  just  legislation,  treat 
this  lawful  property  as  a  nuisance  or  a  source  of  physical  contagion  under 
the  health  and  quarantine  laws;  nor  as  an  article  unsafe  to  be  kept  in 
shops  and  warehouses,  under  the  police  laws  which  regulate  the  fire  de- 
partment. 

The  evil  being  not  in  the  thing,  but  in  the  appetite  for  it,  you  cannot  by 
law,  destroy  or  remove  this  thing  of  lawful  possession,  in  order  to  destroy 
the  appetite  for  its  abuse,  with  any  more  right  than  you  could  destroy  or 
remove  all  personal  property,  to  prevent  robbery  and  theft.  You  cannot 
punish  the  propensity  to  do  wrong  until  wrong  is  done.  You  cannot  de- 
prive one  man  of  his  lawful  rights,  because  his  possessing  and  using  them 
may  tempt  another  man  to  sin,  The  tendency  to  crime,  while  generating 
in  the  mind — the  propensity  or  the  habit  of  not  unlawful  indulgence — are 
not  subjects  for  penal  laws,  but  for  moral  influences.  So  also  is  the  appetite 
or  habit,  connected  with  the  moderate  use  of  ardent  spirit,  while  generat- 
ing the  vice  of  intemperance.  It  is  an  evil,  but  like  many  other  evils,  be- 
yond the  reach  of  a  statute.  Hence  we  say,  in  the  advancement  of  tem- 
perance, which  depends  on  the  control  of  appetite,  on  voluntary  absti- 
nence ;  trust  to  the  voluntary  principle,  or  you  can  establish  nothing  per- 
manent. Rely  on  moral  influences  and  enforce  no  law  beyond  wholesome, 
reasonable,  just  and  uniform  regulations. 

This  is  the  distinction  we  take  between  the  laws  of  regulation  of  two 
hundred  years  standing,  and  this  new  law  of  prohibition  ;  and  if  these  posi- 
tions are  sound  in  matters  of  legislation,  it  follows  that  this  law  ought  not  to 
be  tried  at  all  as  an  experiment,  to  see  whether  it  will  fail  or  succeed.  We 
deny  the  moral  or  constitutional  right  of  the  General  Court  to  make  experi- 
ments in  legislation,  trenching  on  fundamental  rights,  merely  to  test  a 
doubtful  theory  whether  the  lawful  appetites  of  a  particular  class  of  citizens 
cannot  be  exterminated  by  force  of  law. 

We  object  to  this  law  as  useless  and  overmuch  legislation  ;  the  first  in 
the  revival  of  that  series  of  personal  restraints  imposed  under  the  Colonial 
system  of  Blue  Laws,  which  sought  to  enforce  by  penal  enactments, 
sanctimonious  observances,  and  tic  up  every  domestic  and  private  indul- 
gence. I 


16 

We  oppose  i;  as  a  dangerous  legislative  premium  held  out  to  ultras  in  all 
t he  extremes  of  moral  doctrines  and  reforms  of  the  day,  to  get  up  combi- 
nations and  sects,  in  order  to  control  legislation  and  press  their  particular 
creeds  into  the  form  of  law. 

We  oppose  it  because  it  assumes  as  a  principle  of  legislation,  that  sin, 
evil,  exists  in  the  inert  object  that  may  be  abused  to  sin,  and  not  in  pro- 
pensity and  the  human  heart,  and  thus  carries  legal  coercion  over  the  line 
of  voluntary  morality. 

We  oppose  it  because  it  creates  an  artificial  crime  in  order  to  punish  it, 
and  by  a  monstrous  absurdity  in  law  and  morals,  makes  one  half  of  an  act 
which  cannot  be  consummated  without  tho  consent  of  two  parties,  a  crime 
in  one,  and  no  offence  in  the  other. 

The  Law  is  Inexpedient,  as  well  as  Absurd  and  Unjust. 

It  is  inexpedient  even  if  it  could  be  enforced. 

It  is  inefficient,  for  it  cannot  be  enforced. 

Regarded,  then,  by  the  test  of  every  fundamental  principle  in  free  gov- 
ernment, this  statute  is  wrong  in  law,  wrong  in  morals,  wrong  as  it  effects 
private  rights,  and  wrong  as  applied  to  principles  of  human  action. 

ft  Involves  a  neiv  Principle   in   Legislation,   Prohibition,  as  Applied  to 
the  Sale  of  Property  for  Lawful  Uses, 

The  use  as  a  drink  is  not  yet  made  a  crime,  and  yet  the  selling  of  it 
for  such  use,  is  declared  an  offence,  punishable  by  severe  penalties.  The 
prohibition  is  not  applied  solely  to  that  portion  of  the  property  which  may 
become  unfit  for  use,  as  is  the  case  in  the  prohibition  of  sales  of  spoiled 
provisions  and  adulterated  liquids,  but  is  extended  to  the  whole  article  in 
its  purest  state.  No  legislation  on  this  principle,  has  ever  before  been 
applied  to  this  or  any  other  article  of  merchandize. 

No  Former  Law  ever  Abolished  the  Sale  in  any   Quantity  for  any  Use. 

It  only  regulated  houses  and  occupations  as  a  restriction  of  police,  and 
limited  the  number  of  sellers,  not  the  quantity  in  which  the  buyer  should 
be  compelled  to  purchase,  or  not  at  all. 

The  utmost  extent  to  which  any  former  law,  through  a  period  of  two 
hundred  years,  ever  went  in  prohibiting  the  sale  for  use,  was  to  make  it 
penal  to  sell  to  the  drunkard  who  abused  the  use.  This  law  makes  it  a 
crime  to  sell  to  the  most  temperate  user;  and  if  it  be  sound  in  principle, 
that  principle  should  be  extended  to  the  sale  of  every  article  of  luxury  or 
use  which  is  susceptible  of  being  abused  to  the  injury  of  the  buyer  ;  be- 
cause, if  alcohol,  which  may  be  dispensed  with  in  society,  and  which  may 
be  abused,  is  to  be  prohibited  in  its  moderate  use  because  its  use  results  in 
more  injury  than  good,  then  every  article  of  luxury,  pride  or  indulgence, 
which  tempts  to  excess  in  any  one  class  of  society,  must  be  prohibited,  in 
order  to  prevent  crime  by  removing  temptation. 

It  does  Involve  a  New  Principle. 

The  attempt  of  the  advocates  of  this  law  to  deny  that  it  involves  a  new 
principle  of  legislation,  shows  that  they  dare  not  test  it  on  its  true  basis, 
but  find  it  necessary  to  deceive  the  people  into  a  belief  that  it  is  in  fact 
just  like  the  old  laws  on  this  subject.  Why  then  did  they  ask  for  a  new 
law,  if  they  do  not  want  to  enforce  a  new  principle  ? 


17 

Ths   Old  Law  Regulated  Occupations  and  Trades. 

The  law  of '32  was  a  iaw  of  regulation  as  to  trades  and  occupations.  It 
provides  (chap.  47  Revised  Statutes,)  that  "  no  person  shall  presume  to  be 
an  Innholder,  common  victualler,  or  seller  of  wine,  brandy,  rum,  or  any 
other  spirituous  liquor,  to  be  used  in  or  about  his  house  or  other  buildings, 
unless  he  is  first  licensed  as  an  Innholder  or  common  victualler,  according 
to  the  provisions  of  this  chapter,  on  pain  of  forfeiting  one  hundred  dollars." 
"And  if  any  person,  not  licensed  as  an  innholder  or  victualler,  shall  sell  any 
wine  or  spirituous  liquor,  or  mixed  liquor  part  of  which  is  spirituous,  to  be 
used  in  his  house,  he  shall  forfeit  twenty  dollars."  The  license  also  pre- 
scribed the  particular  place  "  where  the  licensed  person  shall  exercise  hia 
employment." 

It  is,  therefore,  the  use  in  the  house  and  the  specific  employment  which 
were  regulated,  and  not  the  sale  forbidden,  under  the  former  law.  It 
applied  the  restriction  or  regulation  to  a  particular  place  in  which  a  cer- 
tain occupation  might  be  carried  on,  but  did  not  assume  to  abolish  the 
occupation  or  to  confiscate  the  property,  in  its  ordinary  use. 

The  new  law  prohibits,  and  is  nothing  but  prohibition. 

The  new  law  is  solely  and  exclusively  a  law  op  prohibition.  It  as- 
sumes to  legislate  on  this  property,  (which  is  as  much  an  article  of  lawful 
merchandize  as  are  teas,  coffee,  or  cloths,)  by  a  special  act,  applied  to  no 
other  property,  and  its  only  legislation  is  prohibition. 

This  is  obvious  from  a  single  consideration.  This  act  virtually  repeals 
all  others  on  the  same  subject,  and  will  be  found  so  in  practice,  because  it 
is  inconsistent  with  all  other  acts.  Strike  it  out,  and  there  is  no  law  of 
prohibition  affecting  this  article  of  property  more  than  any  other  subject  of 
sale  and  transfer.  The  act  does  not  authorize  the  sale  of  fifteen  gallons 
and  upwards,  because  without  it  the  sale  of  that  quantity  would  be  gov- 
erned by  general  laws,  as  the  sale  of  molasses  or  vinegar  is. 

It  follows  that  the  entire  and  sole  operation  of  the  law  is  to  prohibit  the 
sale  under  fifteen  gallons,  and  of  course  the  whole  intent  of  the  law  is  to  pro- 
hibit, for  without  it  there  would  be  no  prohibition  under  fifteen  gallons, 
and  with  it  there  is  none  over. 

Self  contradiction  of  the  supporters  of  the  law. 

The  disingenuousness  of  the  attempt  of  the  supporters  of  the  law  to  dis* 
claim  the  doctrine  of  prohibition  in  this  Statute,  which  they  now  find  to  be 
odious  as  a  new  and  dangerous  principle  in  legislation,  is  the  more  appar- 
ent from  the  fact,  that  the  very  prohibition  they  now  deny,  was  the  entire 
thing  they  asked  for  when  this  law  was  forced  through  the  Legislature  by 
a  sort  of  surprise. 

The  Memorial  asking  for  this  law,  signed  by  the  same  men  who  now 
deny  that  prohibition  was  the  intent,  and  is  the  principle  of  the  act ;  prayed 
the  Legislature  "  that  all  laws  authorizing  the  sale  of  intoxicating  liquors 
may  be  repealed,  and  that  such  sale  may  be  made  penal." 

The  Committee  who  reported  the  law  which  grew  out  of  that  application, 
say  that  "  this  proposition  suggests  the  repeal  of  laws  which  have  existed 
from  the  earliest  period  of  the  history  of  the  Commonwealth," — that  "the 
inefficiency  of  these  laws  to  restrain  the  improper  traffic  in  spirituous  liq- 
uors has  arisen  from  the  fact  that  they  have  professed  to  regulate,  but  not 
to  prohibit  the  sale.  The  laws  have  not  limited  the  quantity  to  be  sold, 
but  only  the  persons  who  should  be  permitted  to  sell  them.  The  modifica- 
tion of  these  laws,  which  the  Committee  propose,  is  the  prohibition  of  the 
sale  of  spirituous  liquors  as  a  beverage." 

[House  Document  for  1838,  No.  53-1 
3 


18 

Here  then,  those  who  asked  fur  the  law  and  those  who  reported  it,  de- 
clared that  their  object  was  to  introduce  a  new  principle,  never  before  em- 
braced in  the  legislation  of  two  hundred  years  on  this  subject,  viz  :  the 
substitution  of  prohibition  in  certain  drinks,  instead  of  the  regulation  of 
particular  occupations  and  employments.  Instead  of  the  uniform  regula- 
tion of  places,  they  apply  a  direct  disqualification  as  to  sale  and  transfer,  to 
an  article  of  lawful  acquisition  and  property.  If  this  is  not  a  new  principle 
in  legislation,  there  can  be  no  new  application  of  penal  laws  to  any  acts 
heretofore  lawful. 

Test  it  by  this  one  fact.  For  two  hundred  years  there  has  never  been  a 
law  in  existence  which  deprived  any  citizen,  rich  or  poor,  of  the  right  to 
buy  his  money's  worth  of  this  species  of  property,  for  any  use  he  chose  to 
put  it  to.  This  law  assumes  todeprive  him  of  the  right,  under  any  cir- 
cumstances, to  buy,  except  for  uses  prescribed  by  law,  the  quantity  he  may 
want,  or  which  he  may  have  the  means  to  purchase,  unless  he  can  com- 
mand  a  certain  amount  of  property  or  credit. 

Comparison  with  the  Game  Laics. 
In  this  it  partakes  of  the  odious  principle  of  the  privileged  game  laws  of 
Great  Britain,  which  require  a  property  with  an  income  of<£100  per  annum 
to  enable  a  man  to  shoot  a  partridge,  or  "being  the  son  and  heir  of  an 
esquire  or  person  of  superior  degree."  Just  so  this  odious  law  affecting  ap«- 
petite,  requires  that  in  order  to  be  qualifiad  to  drink  rum  and  brandy,  a 
man  must  possess  sufficient  property  to  be  enabled  to  expend  ten  or  fifteen 
dollars  at  a  time,  when  the  value  of  as  many  cents  may  be  all  he  wants,  or 
he  must  be  the  son  and  heir  of  "  an  esquire  or  person  of  superior  degree." 

The  Law  as  Applied  to  Employment. 

The  law  is  alike  unjust  and  dangerous  in  its  principle  of  prohibition,  if 
applied  to  trades  and  occupations.  To  abolish  a  trade  which  has  existed 
two  hundred  years,  and  is  sanctioned  by  the  laws  and  treaties  of  the  United 
States,  or  to  take  this  trade  from  one  class  and  give  it  to  another  by  law,  is 
surely  a  new  and  dangerous  principle  in  legislation.  No  trade  can  rightly 
be  abolished  that  is  not  a  nuisance,  and  even  then  it  can  only  be  restrain- 
ed. So  that  there  can  be  no  greater  absurdity  than  to  contend  that  a  trade  by 
retail  in  a  particular  article  of  lawful  property  is  a  nuisance,  but  its  whole- 
sale no  offence  whatever,  and  that,  therefore,  the  first  must  be  prohibited 
and  the  last  allowed  ! 


*  Justice  Blackstone,  in  hia  Commentaries,  says  of  these  game  laws,  that  they  are 
founded  on  the  most  unreasonable  notions  as  to  property,  and  are  productive  of  tyranny 
to  the  common  people— a  bastard  slip  of  special  legislation.  In  King  John's  time 
these  forest  laws  were  so  warmly  kept  up  that  they  occasioned  many  insurrections. 

The  parallel  between  the  game  laws  of  England  and  this  fifteen  gallon  law  of  Mas- 
sachusetts, holds  good  in  other  particulars.  Blackstone  says  of  the  former,  that  this 
offence,  which  is  constituted  by  an  act  of  Parliament,  is  of  a  very  questionable  nature, 
and  yet  it  is  an  offence  which  the  sportsmen  of  England  seem  to  regard  as  the  only 
matter  of  general  national  concern,  associations  having  been  formed  all  over  the  jiing- 
dom  to  enforce  the  law  upon  all  persons,  unless  they  be  people  of  such  rank  and  for- 
tune as  the  law  docs  not  reach.  But  those  indigent  persons  who  violate  the  law  with- 
out having  such  rank  or  fortune,  are  severely  punished,  and  these  punishments  are  im- 
placably inflicted  by  petty  tyrants,  who  are  raised  up  like  little  Nimrods  in  every  ma- 
nor. He  adds,  that  the  only  rational  footing  upon  which  rural  sports  can  be  consid- 
ered as  a  crime,  is  that  in  low  and  indigent  persons  it  promotes  idleness  and  takes  them 
away  from  their  proper  employments,  which  is  an  offence  ao-ainst  the  public  police  and 
economy  of  the  commonwealth  !  [4.  Blk.  Com.  174,  415,  423.]  This  is  just  the  sort 
of  rational  footing  upon  which  the  fifteen  gallon  law  is  placed  ;  viz.  that  it  indulges 
the  rich  and  enables  them  to  control  the  appetites  of  the  laboring  classes,  for  fear  that 
they  should  be  idle,  and  thereby  become  chargable  to  the  "  esquires  and  persons  of 
superior  degree,"  who  can  enjoy  their  fifteen  gallons  and  their  choice  wines  at  their 
leisure  ! 


19 

It  it  a  Retrograde  Movement  in  Liberty. 
It  is  another  grave  objection  to  this  law,  that  it  is  a  retrograde  movement 
in  the  principles  of  free  and  liberal  legislation.  It  goes  back  for  precedents 
to  the  worst  laws  under  the  worst  administrations  of  government.  No  lib- 
eral or  enlarged  act  of  legislation  is  ever  cited  in  its  support;  but  the  old 
Colony  Blue-Laws,  of  the  deepest  color,  and  the  most  questionable  acts  of 
our  existing  code,  are  the  only  parallels  that  can  be  found  to  prop  it  up. 

The   Old  Colony   Laws  all  Licensed. 

But  all  the  Colony  laws,  from  1633  and  1645,  down  to  the  adoption  of 
the  Constitution,  merely  regulated  the  places  where  the  trade  might  be  car- 
ried on,  but  did  not  abolish  it  in  any  quantity  or  for  any  use.  No  law  ever 
existed,  before  this,  that  did  not  license  for  any  use,  or  that  prohibited  the 
sale  in  any  quantity  for  any  use  except  by  unlicensed  persons.  The  oldest 
law  on  record  upon  this  subject,  that  of  1633,  enacted  that  "  the  person  in 
whose  house  any  were  found  or  suffered  to  drinke  dnaikc,  be  left  to  the 
arbitrary  fine  and  punishment  of  the  Governor  and  Council,  according  to 
the  nature  and  circumstance  of  the  same."      [Old  Colony  Laws,  page  31.] 

This  law  was  at  least  just  and  equal,  for  it  applied  to  the  "  esquires  and 
persons  of  superior  degree,''  as  well  as  the  poor  man  ;  but  it  would  not 
suit  our  modern  reformers  in  their  private  or  public  entertainments. 

There  is,  however,  one  law,  precisely  in  point,  of  which  our  opponents 
should  receive  the  full  benefit  in  their  research  into  the  arbitrary  and  ab- 
surd enactments  of  Colonial  legislation.  It  was  passed  in  1661),  and  was 
known  as  "  the  gentleman's  act," — and  was  to  this  effect :  though  even  this 
law  protected  the  licensed  dealer  in  any  quantity. 

"  It  is  enacted  by  this  Court,  that  henceforth  no  persons  shall  have  liberty  to  bring 
any  liquors  into  this  government  for  themselves  or  others,  to  give  or  sell,  but  such  aa 
are  licensed,  more  than  for  their  own  particular  use,  which  shall  not  exceed  six  gallons 
.  in  the  year;  and  each  man's  that  is  so  brought  in,  shall  be  distinct  in  vessels  one  from 
another,  and  in  case  any  do,  it  shall  be  forfeit  or  the  value  thereof.  But  if  it  appear 
that  any  man  of  quality  whose  condition  calleth  fur  further  expense  in  his  family,  that 
then  this  law  shall  not  rkach  them  :  only  this  is  to  be  understood  that  under 
pretence  of  this  hee  shall  not  give  or  sell  to  be  carried  abroad,  except  it  be  soe  that 
the  ordinary  keepers  have  none  to  supply  the  necessities  of  lliem  that  are  sick." 
[Colony  Laws,  page  1G5  ] 

This  is  the  exact  prototype  of  the  present  law,  its  very  form  and  pres- 
sure, except  that  your  law  is  more  illiberal  and  aristocratic,  for  it  will  not 
allow  the  man  of  moderate  means  and  appetite  to  provide  six  gallons  or  less, 
but  cuts  him  off,  and  says,  "that  if  it  appear  that  any  man  of  quality  whose 
condition  calleth  for  further  expense  in  his  family,  wants  wine,  or  fifteen 
gallons  of  spirits  for  his  annual  supply,  then  this  law  shall  not  reach  him!" 

Restrictions  on  Domestic  Rights. 

But  if  the  Colony  laws  are  to  be  cited  as  good  precedents  for  this  act, 
they  are  equally  valid  in  other  arbitrary  restrictions  upon  individual  and 
domestic  rights,  and  where  would  that  lead  us  in  legislation?  By  this 
rule  the  importation  of  tobacco  might  be  prohibited  and  its  use  punished. 
[Colony  Laws,  pages  59.  70,  87,  25:2.]  So  "  if  any  shall  make  any  mo- 
tion of  marriage  to  any  man's  daughter  or  mayde  servant  not  haveing  first 
obtayued  leave  and  consent  of  the  parents  or  master  so  to  doe,  shall  be 
punished  by  fine  or  corporal  punishment."  [p.  Gl.]  "  And  whoever  shall 
inveigle  or  endeavor  to  steal  the  affections  of  any  man's  daughter,  pupil  or 
maid  servant  without  his  consent,  he  shall  be  punished  by  fine  of  five 
pounds  or  corporal  punishment."     [p.  272.] 

In  the  same  spirit,  it  was  enacted  that  no  single  person  should  live  by 
himself  or  in  any  family  but  such  as  the  Selectmen  approve,  and  families 
were  to  be  periodically  inspected  by  selectmen  ;  a  provision,  by  the  way, 
that  may  be  very  necessary  in  the  enforcement  of  this  fifteen  gallon  law,  t< 


/ 


t  20 

ascertain  to  what  ases  the  liquor  bought  of  apothecaries  ic  put  in  the  domes- 
tio  arrangementa  of  the  purchaser. 

The  Colony  had  Unlimited  Powers — the  State  has  not. 
The  prominent  distinction  between  the  Colony  Laws,  touching  this 
species  of  property  called  spirituous  liquors,  and  State  Laws,  is  this.  That 
the  General  Court  of  the  Colony  had  unlimited  power  to  prohibit  importa- 
tion as  well  as  sale  or  use,  there  being  no  paramount  revenue  laws  ;  while 
the  State  has  no  power  to  prohibit  importation  and  sale  under  the  supreme 
laws  and  treaties  of  the  United  States,  and  may  virtually  nullify  these  laws 
if  it  can  do  indirectly  what  it  cannot  do  directly,  abolish  the  importation 
by  prohibiting  the  sale. 

Laws    under    the    State  Constitution,  and   Effect   of  the   United    Stales 

Constitution. 

Up  to  the  period  of  the  adoption  of  the  Confederation  of  the  States  in 
1778,  each  State  had  unlimited  power  to  prohibit  the  importation  of  any 
article  of  commerce.  The  Confederation  took  from  each  State  any  power 
to  lay  imposts  or  duties  that  should  interfere  with  treaties  made  by  Con- 
gress. The  Colony  of  Massachusetts  Bay  had  enacted  laws  regulating 
the  sale  of  ardent  spirits,  wine,  beer  and  cider,  in  1645,  1695,  1698,  1712, 
1761,  1763.  But  not  one  of  these  laws  ever  prohibited  the  sale  in  any 
quantity  or  for  any  use;  and  instead  of  preventing  its  importation,  as  they 
then  had  power  to  do,  we  have  seen  that  in  1777  they  encouraged  impor- 
tation and  prohibited  the  carrying  of  rum  out  of  the  State,  because  there 
was  no  more  in  it  than  was  needed  for  the  army  and  the  inhabitants. 

In  1780  the  State  Constitution  was  adopted,  and  the  first  law  after  that 
was  the  act  of  1786,  "  for  the  due  regulation  of  licensed  houses."  This 
act  was  one  of  regulation  merely,  and  did  not  prohibit  the  sale  of  the 
smallest  quantity  for  any  use.  It  applied,  as  all  similar  laws  ever  had 
done,  to  employments  and  places,  which  were  taxed  and  regulated ;  and 
not  to  persons  or  property,  as  the  present  law  does. 

In  1788  the  United  States  Constitution  was  adopted,  which  gave  to  Con- 
gress the  exclusive  regulation  of  commerce  with  foreign  nations  and  araonc 
the  several  states ;  and  decreed  that  the  laws  and  treaties  of  the  United 
States,  shall  be  the  supreme  law  of  the  land,  and  the  Judges  in  every  state 
shall  be  bound  thereby,  any  thing  in  the  Constitution  or  laws  of  any  state 
to  the  contrary  notwithstanding  ;  and  the  State  Judges  shall  also  be  bound 
by  oath  to  support  the  United  States  Constitution. 

From  this  time  the  regulation  of  the  commerce  of  the  people  of  Massa- 
chusetts with  foreign  countries  and  other  States,  in  alcohol  as  well  as  other 
merchandize,  was  exclusively  vested  in  the  United  States;  and  from  that 
time,  until  the  law  of  1838,  no  act  of  prohibition  interfering  with  the  im- 
portation by  prohibiting  the  sale  in  any  quantity  or  for  any  use,  was  ever 
passed.*  Acts  have  been  passed  on  this  subject  since  the  adoption  of  the 
United  States  Constitution,  in  1792,  1813,  1818.  1831  and  1832,  but  they 
wereall  acts  of  licensing  for  sale,  without  any  restriction  in  quantity  or  use, 
and  went  to  promote  and  not  to  prohibit  the  sale  of  lawful  property  lawfully 
imported,   under  the  Supreme  Laws  of  the  United  States. 

The  present  law  is  virtually,  though  indirectly,  assuming  the  whole 
power  affecting  the  article  of  merchandize  in  question,  which  the  State 
would  have  had,  if  no  concession  of  power  had  ever  been  made  to  the 
United  States;  for  if  the  State  can  pass  laws  to  abolish  the  sale  of  an  arti- 
cle, it  thereby  abolishes  the  importation.  If  it  can  abolish  it  in  part,  it  can 
in  whole. 

_ *  Judge  Story  says,  in  New-York  rs.  Milne,  11  Peters  107, — "Uie  p<nver    to  regulate 
commerce  given  to  Congress,  is  exclusive,  an  d  not  concurrent  with  the  States. 


21 

This  Law  Assumes  Universal  Guardianship  over  Private  Mural  Agauy. 

The  only  prohibition  introduced  into  former  laws,  was  the  prohibition  of 
sale  to  drunkards,  spendthrifts,  &c.  whose  health,  in  the  opinion  of  the 
Selectmen,  was  injured  by  abuse.  This  was  founded  on  the  principle  of 
guardianship,  and  applied  only  to  individual  cases,  upon  positive  evidence 
in  each  case,  where  moral  agency  had  been  subverted  by  the  vic«  of  the 
party  put  under  guardianship.  If  the  Selectmen  made  this  restriction  upon 
any  individual  without  cause,  they  were  liable  in  an  action  for  damages. 
It  did  not  punish  for  fear  a  man  would  do  wrong,  but  punished  and  disqual- 
ified only  for  the  wrong  done.  The  present  law  assumes  that  all  p  oar  men 
are  incapable  of  self-control,  and  puts  them  under  a  general  guardianship 
before  a  single  act  of  indiscretion  is  committed.  It  says  that  because  some 
men  who  cannot  buy  fifteen  gallons  may  do  wrong,  therefore  all  men  of 
limited  property,  shall  be  deprived  of  the  free  agency  of  choosing  between 
right  and  wrong  in  this  matter. 

In  a  word,  all  former  acts  established  no  direct  monopoly,  gave  no  exclu- 
sive privi-leges,  nor  applied  any  disqualification  to  lawful  property.  They  im- 
posed a  tax  on  those  who  should  choose  to  exercise  a  particular  trade  or 
calling,  as  a  law  of  excise,  and  they  regulated  the  places  in  which  it.should 
be  carried  on,  as  a  law  of  police.  The  present  law  forbids  the  sale  of  law- 
ful property  by  any  person,  for  ordinary  uses,  and  permits  none  but  a  par- 
ticular profession,  who  never  sold  it  before,  to  sell  it  in  ordinary  qualities, 
for  any  use  whatever.*  It  is  neithzr  a  law  of  excise  or  police,  but  sheer 
arbitrary  power  ! 

It  is  Wrong  as  a  Laio  of  Prohibition,  because  it  is  Partial. 
It  is  plain,  then,  that  this  act  oversteps  regulation  and  becomes  prohibi- 
tion. As  a  law  of  prohibition,  (even  conceding  the  power  to  make  it,)  it 
must  be  equal  and  consistent,  for  it  can  be  justified  only  on  the  plea  of 
necessity  as  above  all  law,  viz  :  that  the  evil  is  so  great  the  common  good 
demands  prohibition.  To  be  consistent  and  equal  then,  it  must  be  univer- 
sal. That  is,  if  the  Legislature  has  the  power  to  prohibit  an  evil,  by 
trenching  on  individual  and  property  rights,  it  is  unjust  to  apply  the  pro- 
hibition to  any  class  of  society,  or  to  one  cause  of  the  evil,  and  tolerate  it 
as  to  the  rest.  If.  therefore,  intoxication  be  the  great  evil,  and  the  Legis- 
lature is  bound   to  prevent  it  by  prohibiting  the  sale  of  the  cause  of  intoxi- 

*  Chief  Justice  Parker  says,  "  The  Legislature  for  thirty  years  lias  exercised  the 
right  of  exacting  a  sum  of  money  from  Attorniesand  Barristers  at  law,  vendue  masters, 
tavern  keepers  and  retailers,  which  has  been  applied  to  the  privilege  of  using  particular 
branches  of  business  or  employment,  such  as  an  auctioneer,  Attorney,  tavern  keeper,  or 
retailer  of  spirituous  liquors."  [And  he  adds,  which  shows  how  much  wiser  some 
people  affect  to  have  grown  who  ridicule  the  claim  of  natural  right  set  up  by  the  Me- 
morialists against  the  prohibitory  law.]  "  For  every  man  has  a  natural  right  to  exer- 
cise cither  of  these  employments  free  of  tribute,  as  much  as  a  husbandman  or  mechanic 
has  to  use  his  particular  calling."  [12  Mass.  Hep.  250,  case  of  the  Pc.  (land  Bank  ] 
So  that,  according  to  the  views  of  the  Supreme  Court  in  that  case,  the  Legislature  has 
the  same  right  and  no  more,  to  tax  the  employment  of  a  farmer  or  mechanic,  as  of  an 
attorney,  auctioneer,  tavern  keeper  or  retailer  of  spirituous  liquors;  and  if  there  is  the 
same  right  to  tax  one  as  the  other,  there  must  be  the  same  right,  and  no  more,  to  pro- 
hibit the  one  as  the  other.  Unless,  then,  the  Legislature  has  power  to  decree  that  no 
farmer  shall  sell  less  than  fifteen  bushels  of  grain  or  fifteen  pounds  of  pork  to  be  used 
for  food  ;  and. that  no  mechanic  shall  build  a  house  for  vsc  as  a  dwelling  that  costs 
less  than  i$l  5.000  ;  it  follows,  by  the  above  decision,  that  the  Leo-isature  has  not  power 
to  prohibit  the  sale  of  any  other  species  of  property  for  its  ordinary  uses.  The  Consti- 
tution has  no  where  made  any  distinction  in  I  lie  general  protection  of  all  lawful  prop- 
erty, and  unless  the  contrary  is  shown  from  the  Constitution,  the  reasoning  of  Chief 
Justice  Parker  is  conclusive  against  the  power,  now  for  the  first  time  in  our  history 
attempted  to  be  used  by  the  Legislature  in  proscribing  a  particular  employment  which 
the  supreme  laws  of  the  United  States  sanction  ;  and  in  singling  out  a  particular  de- 
scription of  lawful  property  for  confiscation  or  disqualification. 


22 

cation;  that  prohibition  to  be  just  and   equal,  must  be   universal  &a  to  all 
classes  of  men  and  all  descriptions  of  intoxicating  beverage. 

There  is  no  necessary  limit  up  to  fifteen  gallons.  The  pretence  that  the 
Legislature  could  not  go  farther,  is  utterly  false,  if  it  be  true  that  they 
could  so  so  far.  There  is  nothing  in  the  United  States  laws  to  limit  the 
power  to  prohibit  fifteen  gallons  any  more  than  fifteen  thousand  gallons. 
This  prohibitory  law  of  1838  says,  that  no  person  shall  sell  in  less  quantity 
than  fifteen  gallons,  thus  including  the  importer  as  well  as  retailer.  But 
all  agree  it  is  void  as  to  the  importer.  He  may  sell  to  the  next  of  hand, 
and  cannot  be  restrained  but  by  the  laws  of  Congress. 

The  ground  taken  by  the  supporters  of  the  law  then,  is,  that  when  the 
property  passes  from  the  importer,  it  becomes  subject  to  all  State  regula- 
tions affecting  internal  commerce,  and  cannot  be  reached  by  the  laws  of 
the  United  States.  It  must  follow,  if  this  be  sound,  that  if  the  State  has 
power  to  abolish  internal  commerce  as  to  fifteen  gallons,  and  as  to  rum, 
brandy,  and  spirituous  liquors,  it  has  power  to  abolish  this  commerce  en- 
tirely, as  to  any  quantity,  and  as  to  any  articles  of  property.  The  assump- 
tion of  State  power,  therefore,  if  good  for  fifteen  gallons  of  brandy,  is  good 
for  every  description  and  quantity  of  liquor,  and  for  every  kind  of  prop^ 
erty  (hat  is  the  subject  of  sale  ;  so  that  it  amounts  to  an  omnipotent  power 
in  the  Legislature  over  the  internal  commerce  of  the  citizens  of  a  State, 
to  prohibit  the  sale  and  transfer  of  any  and  every  kind  of  property  between 
man  and  man,  except  barely  from  the  importer  to  the  next  buyer,  who  may 
buy  but  cannot  sell  again. 

The  power,  then,  being  supreme,  if  it  exists  at  all,  why  is  it  limited  to 
fifteen  gallons,  and  why  confined  to  alcohoi  in  spirits,  and  not  extended 
to  alcohol  in  wines,  cordials,  and  fermented  liquors?  If  the  Legislature 
has  supreme  control  over  any  article  of  importation  the  moment  it  passes 
out  of  the  hands  of  the  importer,  it  can  stop  its  transit  from  the  purchaser 
to  another  in  any  and  every  quantity,  whether  it  be  a  cask  of  brandy  or  a 
bottle  of  wine,  a  bale  of  goods  or  a  yard  of  muslin. 

The  power,  then,  if  it  exists  at  all,  to  prohibit  sale  of  a  lawful  property 
from  citizen  to  citizen,  must  be  supreme  and  unlimited.  It  follows,  there- 
fore, that  having  the  power  of  entire  prohibition,  if  it  have  any  power  to 
prohibit  at  all,  this  prohibitory  law,  which  denies  the  sale  in  small  quanti- 
ties and  permits  it  in  large,  and  applies  only  to  the  drink  of  men  of 
small  means  and  not  to  that  of  the  rich  :  is  not  only  a  palpable  violation  of 
equal  rights  and  equal  laws,  but  is  false  in  its  sole  pretence  of  right,  viz  : 
the  common  good  ;  for  it  is  worse  than  folly  to  pretend,  as  this  law  does, 
that  it  is  for  the  common  good  that  men  should  not  get  drunk  on  rum, 
brandy  and  gin,  but  is  for  the  common  good  that  they  should  be  allowed  to 
get  drunk  on  wines,  cordials  and  fermented  liquors — that  it  is  for  the  com- 
mon good  to  restrain  men  who  cannot  buy  fifteen  gallons  at  a  time,  and  is 
not  for  the  common  good  to  restrain  wealthier  men  who  have  the  means  to 
buy  that  quantity  at  pleasure  ! 

Plainly,  then,  if  argument  can  amount  to  demonstration,  the  law  is 
wrong  as  a  law  of  prohibition.  It  is  either  too  7)wck,  and  therefore  uncon- 
stitutional, because  it  violates  the  rights  of  property,  or  is  too  little,  and 
therefore  unconstitutional,  because  it  violates  the  equal  rights  of  the  citizen. 

The  question  of  Constitutionality. 

This  I  have  touched  upon,  in  general  terms,  under  the  preceding  branch 
of  the  argument.  Let  us  apply  it  more  directly, — first,  to  the  Constitution 
and  Laics  of  the  United  States. 

These  are  supreme,  and  must  govern  our  State  Legislatures  in  making, 


23 

and  the  Courts  in  enforcing  laws.     The  sixth   article  of  the  Constitution 
of  the  United  States  declares  that 

"  The  members  of  the  several  State  Legislatures,  and  all  executive  and  judicial  offi- 
cers of  the  several  States,  shall  be  bound  by  oath  or  affirmation,  to  support  this  Consti- 
tution." And  that  "  the  Constitution,  Laws,  and  Treaties,  of  the  United  Slates,  shall 
be  the  supreme  law  of  the  land,  and  the  Judges  in  the  several  States  shall  be  bound 
thereby." 

These  supreme  laws  authorize  the  importation  into  this  State  of  alcohol, 
on  the  same  terms,  and  with  the  same  rights,  that  clothes,  teas,  or  any 
article  of  lawful  property  and  foreign  commerce  may  be  imported. 

First  then,  there  is  no  power  in  this  State,  to  prohibit  or  prevent  the 
landing  of  this  article  at  our  wharves,  its  entry  at  the  Custom  House,  and 
its  being  stored  in  the  warehouses  of  our  citizens. 

Second,  it  is  admitted  on  all  hands,  that  when  the  property  is  so  intro- 
duced, and  the  right  of  introducing  it  has  been  paid  for  by  the  merchant, 
he  has  the  right  to  sell  it.  The  State  has  no  power  to  impose  on  the 
importer  a  single  restriction,  or  a  cent  of  tax  or  excise,  in  any  form,  to 
interfere  with  his  sale  of  the  imported  article  to  other  citizens  of  the  State. 
The  same  privilege  which  extends  to  an  importer  from  a  foreign  country 
extends  to  an  importer  from  another  State. 

But  this  law  of  1S33  assumes  to  deny  this  right  to  the  importer.  It 
walks  right  over  the  supreme  laws  and  treaties  of  the  United  Slates,  and 
declares  "  no  person  shall  sell"  —  thus  assuming  to  prohibit  the  importer 
from  selling.  , 

All  agree  that  in  this  respect  the  law  is  unconstitutional,  and  cannot 
reach  the  importer.  But  it  is  admitted  that  the  law  may  be  unconsti- 
tutional in  one  provision  and  constitutional  as  to  the  rest. 

We  thus  have  the  demonstration  that  in  passing  this  Act  of  1838,  the 
Legislature  did  enact  an  unconstitutional  provision,  in  one  part  of  it,  as  to 
importers;  and  this  may  well  diminish  our  confidence  in  the  wisdom  and 
integrity  of  the  majority,  in  passing  the  rest  of  the  law  ;  for  if  under  the 
stimulus  of  secret  societies  and  combinations  got  up  by  bigoted  men  out 
doors,  to  lobby  the  Legislature  into  this  enactment,  the  majority  consented 
to  violate  the  supreme  law  of  the  land  in  one  particular,  why  may  they  not 
have  done  so  in  other  respects? 

What  are  the  rights  of  the  Importer  ? 

The  point  then,  is  established,  that  the  rights  of  the  Importer,  se- 
cured by  the  supreme  law  of  the  land,  cannot  be  infringed  by  the  laws 
of  a  State. 

What  are  these  rights  1  Why  does  the  importer  import  and  pay  duties 
to  the  Government  ?  Not  to  keep,  use  or  store  the  article  himself,  but  to 
sell  it.     The  right  to  import  then  carries  with  it  the  right  to  sell. 

What  is  the  right  to  sell?  It  cannot  exist  in  the  seller  without  the 
right  in  others  to  buy.  Any  restriction  on  the  right  to  buy,  is  a  restriction 
on  the  right  to  sell.  The  buyer  who  buys  for  consumption,  wishes  to  buy 
in  quantities  to  meet  his  convenience  and  his  demand  for  consumption. 
If  he  is  compelled  to  buy  more  than  he  wants  or  can  afford,  he  is  obliged 
either  to  violate  the  law  or  go  without,  while  his  richer  neighbor  is  fully 
supplied. 

The  buyer  who  buys  to  sell  again,  will  only  buy  on  condition  that  he 
can  sell  in  quantities  to  meet  customers  generally  ;  or  in  such  quantities 
as  a  great  proportion  of  consumers  wish  to  buy.  He  then,  must  either 
violate  the  law,  or  must  sell  only  to  that  paiticular  class  who  have  the 
means  to  buy  more  than  they  want  at  a  time, 


24 

It  follows  conclusively,  that  this  law,  (if  enforced,)  would  be  a  positive 
restriction  on  t lie  importer.  He  imports  to  sell  ;  but  none  will  buy  of  him 
if  they  cannot  sell  again  :  consequently,  to  deny  to  the  purchaser  from  the 
importer  the  right  to  sell,  is  a  denial  of  sale  to  the  importer  himself. 

Now,  has  the  State  law  a  right  to  deprive  the  importer  of  the  market 
which  he  pays  his  duties  to  the  United  States  for  enjoying?  Look  at 
this  fairly. 

Heretofore,  (ever  since  178S,  when  the  Constitution  of  the  United  States 
was  agreed  to,)  the  importer  in  this  State  could  sell  to  all,  in  any  quantity. 
All  would  buy  because  they  could  sell  again,  or  consume  in  any  quantity 
they  chose.  Now,  under  this  law,  (if  enforced,)  the  importer  can  sell 
only  to  those  who  buy  to  sell  again  or  to  consume,  in  fifteen  gallons  at  a 
time.  The  importer,  (if  the  law  is  carried  out,)  would  thus  lose  nine- 
tenths  of  his  customers,  and  thus  importation  which  is  guarantied  by  the 
supreme  laws  of  the  land,  would  be  prohibited  nine-tenths  by  a  law  of 
the  State. 

If  the  State  can  cut  off  all  the  buyers  under  fifteen  gallons,  it  can  all  under 
fifteen  thousand  gallons;  because  if  the  restriction  of  fifteen  gallons  is 
construed  to  apply  only  to  internal  State  commerce,  then  the  State  is 
omnipotent  in  its  power  over  that  commerce,  and  can  entirely  prohibit 
traffic  in  the  article  between  its  citizens.  If  it  can  destroy  the  traffic 
between  its  citizens,  it  of  course  destroys  importation,  for  it  is  imported 
only  because  it  is  trafficked  in  between  citizens  of  the  State. 

Again  ;  if  the  State  can  apply  this  prohibition  to  one  article  of  com- 
merce, (alcohol)  it  can  to  all  articles  of  merchandise  whenever  a  majority 
of  the  Legislature  happen  to  believe  that  the  use  of  any  such  article  may 
be  injurious  to  the  citizens 

What  then  becomes  of  the  poivcr  to  regulate  commerce,  which  this  State 
has  solemnly  ceded  to  the  United  States?  Why  do  you  go  to  Congress  for 
tariffs,  when  you  can  make  your  own  tariffs  at  pleasure,  if  this  law  be 
constitutional  ? 

You  want  to  build  up  home  manufactures  ;  you  say  it  injures  home 
industry  to  have  foreign  fabrics  in  our  market.  Just  pass  a  law  that  no 
cotton,  woollen,  or  silk  goods,  shall  be  sold  in  less  quantities  than  fifteen 
pieces.  Enforce  such  a  law,  and  who  will  buy  of  the  importer,  or  who 
will  import  ?  A  State  may,  on  this  doctrine,  usurp  the  whole  power  of 
Congress,  and  take  back  all  it  conceded  in  the  Constitution. 

Wliat  is  the  effect  on  Treaties  ? 

The  public  faith  is  violated,  if  this  law  be  established.  The  United 
States  has  made  treaties  with  France,  Great  Britain  and  Holland,  opening 
our  markets  to  their  brandy,  rum,  and  gin,  the  same  as  to  other  articles 
of  commerce.  These  markets  are  only  in  the  States.  Now  this  State  law 
assumes  the  power  to  shut  up  those  markets,  and  thus  nullify  these  treaties. 
It  says  to  these  foreign  traders,  "you  may  send  your  merchandise  to  our 
wharves,  but  we  will  pass  laws  to  prevent  our  citizens  buying  it?" 
What  is  this  but  in  effect,  assuming  the  whole  control  over  foreign  com- 
merce,  by  shutting  up  the  market,  and  thus  violating  the  national  faith 
pledged  in  treaties,  by  making  those  treaties  of  no  effect? 

What  becomes  of  the  oath  of  Legislators  to  support  these  treaties,  if 
they  can  thus  evade  them?  Every  man  who  voted  for  the  fifteen  gallon 
law  knoics  he  did  it  to  cut  off  the  market  for  importation,  and  to  prevent 
trafic  in  alcohol.  This  is  the  avowed  object  and  aim  of  the  law.  He 
knows  too,  that  under  his  oath,  he  has  no  power  to  do  this  directly,  for  that 
power  is  given  to  Congress.  Will  he  pacify  hi3  conscience  by  doing  indi- 
rectly, what  he  has  sworn  not  to  do  directly  1     The  end  and  aim  of  all 


25 

treaties  of  commerce,  and  all  laws  of  importation  are  to  secure  a  market,- 
When  the  United  States  has  done  this  in  good  faith,  shall  a  State  shut 
up  the  market  by  law,  and  annul  all  treaties  and  all  laws  regulating  impor- 
tation, by  annulling  sale  between  its  citizens? 

If  this  is  not  bad  law,  there  is  bad  faith  in  such  a  proceeding,  at  which 
honest  and  high  minded  men  should  stop  to  consider  gravely,  how  much  of 
moral  obligation  they  have  got  to  violate,  before  they  can  enforce  this  law 
of  pretended  moral  reform  ! 

Effects  of  this  law  on  the  Revenue  Laws  of  the  United  States. 

The  intent  of  this  law  is  to  prevent  or  diminish  importation,  and  there- 
fore it  is  a  manifest  violation  of  the  8th  section,  article  1  of  the  Constitution 
of  the  United  States;  of  the  concessions  of  the  States  to  the  power  of  Con- 
gress, to  raise  a  revenue  upon  imports  into  the  United  States,  and  of  the 
laws  and  treaties  made  by  the  United  States. 

The  decisions  of  the  United  States  Supreme  Court,  and  of  the  Supreme 
Court  of  this  State,  bear  out  this  view  of  the  case.  In  Brown  vs.  Maryland, 
[12  Wheaten  439]  the  question  was,  whether  the  State  of  Maryland, 
could  impose  a  tax  on  importers  of  clothes,  rum,  brandy,  wines,  &c.  The 
Court  decided  it  could  not.  Why?  because  it  would  concede  to  the  States 
a  power  to  annul  their  concessions  to  Congress  in  regulating  commerce  and 
raising  a  revenue. 

Congress  has  the  whole  power  to  tax  imposts  and  to  raise  revenue  on 
commerce.  Why  was  this  conceded  by  the  States  ?  Clearly  that  the  reg- 
ulations might  be  uniform  ;  that  no  one  state  should  be  able  to  shut  up  its 
market  to  any  article  of  commerce,  or  to  prohibit  its  importation  by  taxes, 
or  by  any  obstructions  that  should  prohibit  its  sale. 

This  is  manifest,  from  the  fact,  that  no  goods  are  made  dutiable  unless 
imported  with  the  intention,  and  for  the  purpose  of  sale.  This  is  what 
the  importer  pays  the  United  States  Government  for, — the  right  to  sell. 
Having  bought  the  right,  shall  he  be  deprived  of  it,  directly  or  indirectly 
by  state  legislation  ? 

The  privilege  of  importing,  and  the  privilege  of  selling,  are  indissolubly 
connected.  The  right  to  sell  is  a  necessary  incident  to  the  right  of 
importing.  The  grant  of  a  privilege  to  import  would  be  of  no  value  un- 
less it  also  conveys  a  right  to  sell.  Deny  to  the  importer  the  right  to  sell, 
and  importation  necessarily  ceases.* 

This  doctrine  is  clearly  sustained  in  the  decision  in  Brown  vs.  Maryland. 
Chief  Justice  Marshall  says  : 

"  Why  are  the  States  restrained  from  imposing1  duties  on  imports  or  exports  ? 
Plainly  because  it  was  believed  that  the  interest  of  all  would  be  best  promoted  by 
placing  that  whole  subject  under  the  control  of  Congress.  Whether  the  prohibition  to 
"lay  imposts  or  duties  on  imports  or  exports,"  proceeded  from  an  apprehension  that 
the  power  might  be  so  exercised  as  to  disturb  that  equality  among  the  States,  which 
was  generally  advantageous,  or  to  confer  the  source  of  revenue  on  the  Government 
of  the  Union,  it  is  plain  that  the  object  would  be  as  completely  defeated  by  a  power  to 
tax  the  article  in  the  hands  of  the  importer,  the  instant  it  was  landed",  as  by  a  power 
to  tax  it  while  entering  the  port.     There  is  no  difference,  in  effect,  between 

THE  POWER  TO  PROHIBIT  THE  SALE  OF  AN  ARTICLE  AND  TllE  POWER  TO  PROHIBIT  ITS 
INTRODUCTION  INTO  THE  COUNTRY.  The  ONE  WOULD  BE  A  NECESSARY  CONSEQUENCE  OF 
THE  OTHER.       NONE  WOULD  BE  IMPORTED  IF  NONE  COULD  BE  SOLD." 

I  pray  you  to  mark  the  reasons  of  this  decision  of  the  Supreme  Court 
of  the  United  States  !  It  denies  to  a  State  the  power  to  impose  a  tax  upon 
importers  or  upon  imported  goods  in  their  hands,  which  was  the  extent 
of  the  case  before  it.     Why  1     Because  this  tax  might  be  such  aa  to  defeat1 

*See  Mr.  Meredith's  logical  argument  in  Brown  vs.  Maryland. 

4 


EhSt  concession  of  the  States  which  has  given  u  the  source  of  revenue"  to 
the  United  States.  And  why  would  such  a  power  m  a  State  defeat  the 
revenue  power  in  the  United  States  ?  Because  of  the  fact  that  sale  and 
importation  are  cause  and  effect.  Take  away  the  first,  and  the  last  ceases 
to  exist  4  power  to  prohibit  the  sale  of  an  article  is  a  power  to  prohibit 
its  introduction.  This  last  power  no  State  has,  and  therefore  it  cannot 
have  the  power  to  prohibit  sale.  If,  as  the  Supreme  Court  says,  in  Brown  s 
ease  it  will  not  permit  the  power  of  Congress  to  raise  a  revenue,  to  be 
defeated  by  a  power  in  a  State  to  tax  an  article  of  import  in  the  hands  of 
the  importer,  the  instant  it  is  landed,  will  it  permit  that  power  to  be  de- 
feated still  more  effectually,  by  a  State  law  that  prohibits  the  sale  of  the 
article  after  it  goes  out  of  the  hands  of  the  importer,  and  thus  annihilates 
importation  and  revenue  together? 

The  whole  ground  then,  on  which  a  State  is  denied  the  power  to  tax 
imports  or  importers,  is,  because  it  might  raise  that  tax  so  as  to  render  it 
impossible  to  sell  at  a  profit,  and  thus  destroy  importation  by  destroying  sale. 

This  is  the  whole  reasoning  in  Brown  vs.  Maryland,  and  Judge  Story 
re-affirms  it  in  New-York  vs.  Milne,  11  Peters,  160;  where  he  dissented 
from  the  rest  of  the  Court.     He  says,  that  in  Brown's  case 

"  It  was  argued,  that  the  act  requiring  a  license  (of  the  importer)  did  not  reach  the 
property  until  after  its  arrival  in  the  State  ;  that  it  did  not  obstruct  the  importation, 
but  only  the  sale  cf  the  goods  after  importation  ;  but  the  Court  said,  'there  is  no  dif- 
ference in  effect,  between  the  power  to  prohibit  the  sale  of  an  article,  and  the  power  to 
prohibit  its  introtluctio?i  into  the  country.  The  one  would  be  a  necessary  consequence 
of  the  other.     None  would  he  imported  >f?wnc  could  be  sold."  * 

Judge  Story  adds,  (as  his  own  opinion,)  that  "  the  result  of  the  whole 
reasoning  is.',  that  whatever  restrains  or  prevents  the  introduction  or  impor- 
tation oi'  goods  into  the  country,  authorised  or  allowed  by  Congress,  whether 
in  the  shape  of  a  tax  or  other  charge,  or  whether  before  or  after  their 
arrival  in  port,  interferes  with  the  exclusive  right  of  Congress  to  regulate 
eommerce." 

Chief  Justice  Marshall,  in  giving  the  opinion  of  the  Court  in  Brown's 
case,  also  says  :■ — 

"  It  is  obvious  that  the  same  power  which  imposes  a  light  duty,  can  impose  a  very 
heavy  one  ;  one  which  amounts  to  prohibition.  If  it  may  be  exercised  at  all,  (by  a 
State,)  it  must  be  exercised  at  the  will  of  those  in  whose  hands  it  is  placed.  If  the  tax 
may  be  levied  in  this  form  by  a  State,  it  may  be  levied  to  an  extent  which  will  defeat 
the  revenue  by  impost,  so  far  as  it  is  draicnfrom  importation  into  the  particular  States." 

Apply  the  whole  of  this  reasoning  against  the  prohibitory  power  of  the 
States,  to  this  law  of  1838.  What  is  the  design  of  that  law  ?  To  restrain 
importation  by  restraining  sale.  To  prevent  the  introduction  of  alcohol 
into  this  State,  though  it  is  one  of  the  essential  articles  of  commerce  on 
which  the  United  States  relies  for  revenue — to  defeat  the  United  States 
revenue,  so  far  as  it  is  drawn  from  importation  of  alcohol  into  this  State ! 

Chief  Justice  Marshall  says,  if  a  State  can  impose  a  light  duty  on 
imposts,  it  can  a  heavy  one,  amounting  to  prohibition.  Therefore  it  shall 
impose  no  duty  whatever.  For  the  same  reason,  if  it  can  prohibit  the  sale 
of  an  article  of  import  under  a  given  quantity,  however  small,  it  can  pro- 
hibit the  sale  of  the  article  in  any  quantity,  however  large.  If  a  State  can 
prohibit  the  sale  of  an  article  (say  Chief  Justice  Marshall  and  Judge  Story, 

*  A  most  extraordinary  perversion  of  this  decision  was  made  by  one  of  the  counsel 
in  favor  of  the  Law,  before  the  Committee.  He  contended  that  it  conceded  the  power 
to  the  States  to  prohibit  sale,  and  by  consequence  importation,  when  it  expressly 
denies  such  a  power  in  a  State. 


m 

with  the  whole  Court,)  it  can  prohibit  its  introduction  into  the  country 
and  thus  defeat  the  revenue  by  impost  in  that  Stale. 

If  one  State  has  the  power,  all  have  it  ;  and  all  can  shut  up  their  mar- 
kets to  an  article  allowed  to  be  imported  by  the  laws  of  the  United  States. 
If  this  can  be  done  as  to  one  article,  it  can  be  done  as  to  all ;  and  thus  the 
States  have  the  power  to  destroy  all  revenue  derived  from  importations. 

[In  1838,  the  whole  amount,  in  value,  of  all  articles  imported  into  the 
United  States,  was  $113,717,404.  Of  this  sum,  .$60,860,005  in  value, 
were  articles  free  of  duty,  leaving  $52,857,399  in  value,  of  articles 
imported  on  which  duties  were  charged  for  purposes  of  revenue.  The 
value  of  ardent  spirits  and  wines  imported  in  1838,  was  *3, 795, 190  ;  viz. 
1,476,908  gallons  of  spirits,  and  2,318,282  gallons  of  wine  ;  which  is 
13,  92-100,  being  a  fraction  less  than  a  fourteenth  part  of  the  whole 
revenue  of  the  United  States.  So  that  if  the  States  have  the  power,  inde- 
pendent of  Congress,  to  destroy  importation' of  intoxicating  liquors  by  pro- 
hibiting the  sale  in  their  territories,  they  have  the  power  of  abolishing  a 
fourteenth  part  of  the  public  revenue,  thus  leaving  Congress  at  the  mercy 
of  the  States,  in  providing  the  sources  of  public  revenue  to  meet  the  public 
expenses.  Can  this  be  constitutional?  Can  such  a  power  as  this  be  con- 
sistent with  the  power  over  revenue  ceded  to  the  United  States  ?  Carry  it 
out,  for  if  it  exists  in  little  it  exists  unlimited.  Massachusetts,  for  instance, 
may  wish  to  prevent  importation  of  alcohol,  wine,  tobacco,  opium,  and  all 
sorts  of  stimulants  to  intoxication  or  luxury,  on  account  of  morals;  and 
of  all  articles  which  she  manufactures,  on  account  of  domestic  industry. 
South  Carolina  may  wish  to  prohibit  the  manufactures  of  Massachusetts 
on  account  of  her  objections  to  the  Tariff.  The  Northern  States  may 
conclude  to  prohibit  cotton,  rice,  and  tobacco,  because  they  are  raised  by 
slaves ;  and  the  Southern  and  Western  States  may  wish  to  shut  out  all  the 
fabrics,  shoes,  and  products  of  the  free  States,  unless  they  will  put  down 
Abolition  Societies.] 

If  this  fifteen  gallon  law  be  constitutional,  where  is  the  restraint?  All 
these  prohibitions  of  commerce  between  the  states  can  be  enforced  by  pro- 
hibiting the  sale  of  the  articles  between  citizens  of  the  respective  etates, 
and  thus  the  great  purpose  of  the  Constitution  and  the  Union,  revenue  and 
uniform  commerce,  is  at  an  end. 

The  only  question  that  can  be  raised  to  evade  the  foregoing  conclusions 
is,  whether  a  State  can  do  indirectly  what  the  Constitution  prohibits  it  from 
doing  directly, — that  is,  whether,  altholigh  it  has  not  the  power  to  prevent 
or  restrain  importation  of  an  article,  or  destroy  the  revenue  the  United 
States  derives  from  it,  by  prohibiting  the  sale  from  the  importer  to  his  pur- 
chaser, it  can  do  the  same  thing  by  prohibiting  the  sale  from  that  purchaser 
to  any  other  buyer?  If  a  state  can  do  this,  it  can  effectually  destroy  the 
importation  of  any  article  so  prohibited,  and  deprive  the  government  of  the 
market  for  the  sale  of  that  article,  from  the  sale  of  which  alGne  is  derived 
revenue,  by  inducing  importation. 

Certain  it  is,  that  if  the  states  have  this  power,  as  a  branch  of  the  regu- 
lation of  their  internal  commerce,  they  can,  by  state  laws,  prohibiting  sale 
between  their  citizens  and  in  their  respective  territories,  nullify  the  impor- 
tation laws,  and  cut  off  all  sources  of  the  public  revenue.  To  say  that  the 
laws  of  the  United  States  are  not  infringed  by  permitting  the  importer  to 
sell,  while  the  state  law  prohibits  the  citizens  from  buying  the  article  of 
each  other,  is  to  affirm  that  the  prohibition  of  the  traffic  between  citizens 
does_  not  interfere  with  or  restrain  importation,  and  does  not-diminish  the 
revenue  that  would  otherwise  be  derived  from  such  importation. 

Now,  as  it  is  obvious  that  the  prohibition  to  sell  between  citizens  ramt 
have  this  effect,  and  as  that  is  its  avowed  object,  and  only  possible  beuGftt. 


28 

it  must  follow  that  a  law  of  prohibition  is  directly  repugnant  to  the  exclu- 
sive power  given  to  Congress  to  regulate  importations  into  the  states, 
and  to  raise  a  revenue  fiom  such  importations  by  their  sale  in  the  markets 
of  the  states. 

Distinction  bctioccn  the  old  and  new  law  in  this  respect. 

This  makes  a  plain  distinction  between  the  former  license  laws  of  this 
state,  which  merely  direct  and  regulate  the  mode  of  selling  by  citizens  of 
the  state,  without  restriction  as  to  quantity,  and  the  existing  law,  which 
positively  prohibits  the  sale  in  less  quantities  than  fifteen  gallons  ;  because 
such  a  prohibition  cannot  be  enforced  without  diminishing  importation 
and  revenue,  by  diminishing  consumption  and  sale  in  the  market  of 
the  State. 

This  doctrine  is  fully  admitted  in  the  case  of  the  Commonwealth  vs. 
Kimball,  decided  by  the  Supreme  Court  of  this  State,  under  the  former 
law  of  1832.  The  Court  says,  that  in  the  exercise  of  the  powers  reserved 
to  the  states,  "  they  have  the  right  and  power  to  resort  to  all  adequate  and 
appropriate  means,  for  carrying  these  powers  into  effect,  unless  they  shall 
happen,  in  any  particular  instance,  to  come  directly  in  conflict  with  the 
operation  of  some  law  of  the  United  States,  made  in  pursuance  of  its  enu- 
merated powers." 

The  only  question  at  issue  in  this  case  of  Kimball,  was  whether  the  law 
of  1832,  requiring  a  license  for  the  retail  of  spirituous  liquors,  was  repug- 
nant to  the  laws  of  the  United  States,  authorising  the  importation  of  the 
article,  and  raising  a  revenue  thereon.  The  Court  decided  that  "the 
power  to  regulate  licensed  houses,  and  to  provide  for  the  regulation  of  the 
sale  of  spirituous  liquors,  is  an  acknowledged  power  of  the  state  government. 
It  is  not  to  be  presumed  that  the  Constitution  was  intended  to  inhibit  or 
restrain  the  exercise  of  so  useful  and  necessary  a  power,  unless  it  shall  so 
appear  by  plain  words  or  necessary  implication.  The  burden  is  upon  those 
who  would  set  up  and  enforce  the  restraint,  to  establish  it  by  showing  that 
the  Constitution,  by  particular  provisions,  or  in  the  accomplishment  of  its 
general  purposes,  necessarily  interferes  with  it."  And  the  Court  adds, 
•"  that  the  objects  to  be  accomplished  by  State  regulation,  are  to  be  reached 
and  effected  by  any  appropriate  means,  which  do  not  interfere  with  the 
exercise  of  any  of  the  poioers  vested  in  the  General  Government." 

These  powers  are ;  to  provide  for  the  importation  of  any  article  of 
commerce  into  a  State,  and  to  rarse  a  revenue  from  such  importation. 
These  are  the  "general  purposes"  of  the  Constitution  in  this  particular  ; 
and  they  depend  entirely  upon  the  right  to  use  the  market  of  the  State  for 
the  sale  of  the  imported  article. 

The  law  of  1832  did  not  necessarily  interfere  with  these  powers  or  pur- 
poses, nor  was  it  designed  in  its  operation  or  effect,  to  diminish  importation 
or  revenue.     It  encouraged  and  promoted  the  traffic  between  citizens. 

But  the  law  of  1838  does  nothing  but  prohibit  and  discourage  sale.  It 
regulates  nothing,  for  its  whole  jurisdiction  is  confined  to  less  than  fifteen 
gallons,  and  the  sale  of  this  it  directly  inhibits.  If  carried  into  effect  it 
must  diminish  importation  directly,  by  abolishing  demand  and  supply.  It 
is  palpable  therefore,  that  the  power  of  Congress  to  raise  a  public  revenue 
from  this  source,  is  to  be  materially  affected  by  the  intended  operation  of 
this  law,  should  it  be  enforced. 

"I  cannot  admit,  (says  Judge  Story,  in  the  case  of  New  York  rs.  Milne)  that  the 
States  have  authority  to  enact  laws  which  trench  upon  the  authority  of  Congress  in 
its  power  to  regulate  commerce." — It  is  no  answer  to  say  that  the  States  will  have  too 
much  wisdom  and  prudence  to  exercise  the  authority  to  an  injurious  extent.  Laws 
were  actually  passed  by  New  "Sork,  New  Jersey,  and  Connecticut,  during  the  Steam 
Boat  controversy,  which  threatened  the  safety  and  security  of  the  Union,  and  demon- 


29 

strate  the  necessity  that  the  power  to  regulate  commerce  among  the  Slates,  should  be 
exclusively  in  the  Union,  in  order  to  prevent  the  most  injurious  restraints  upon  it."* 

Must  it  not  be  conceded,  then,  either  thai  this  law  does  infringe  upon 
the  importation  and  revenue  laws  of  Congress,  or  that  the  public  revenue 
of  the  Union  is  entirely  at  the  mercy  of  the  States,  which  may  annihilate 
it  whenever  they  choose  to  cut  off  importation  by  prohibiting  sale  between 
their  citizens  and  in  their  respective  territories? 

Such  are  the  views  I  take  of  the  repugnance  of  this  law  to  the  Con- 
stitution, treaties,  and  laws  of  the  United  States.  I  must  say,  that  I  regard 
them  as  deserving  much  graver  considerations  than  they  seem  to  have 
received  in  this  excited  controversy. 

This  Law  violates  the  State  Constitution. 

A  state  law  may  be  constitutional  as  respects  the  United  States  Consti- 
tution, and  yet  be  a  violation  of  the  Constitution  of  the  State,  which  is  the 
supreme  law  in  the  Commonwealth,  that  legislators,  judges,  jurors,  and 
citizens,  are  bound  to  obey  in  preference  to  any  enactment  by  the  General 
Court. 

The  fundamental  principles  of  the  State  Constitution  which  this  law 
violates,  are, 

1st  ,  the  unalienable  right  of  acquiring  and  possessing  property.     Art.l. 

2d.  The  right  each  individual  of  the  Society  has  to  be  protected  by  it 
in  the  enjoyment  of  property  according  to  standing  laics.  Art.  10.  The 
guarantie  that  no  part  of  the  property  of  an  individual  can  be  jnstly  taken 
from  him  without  compensation. 

3d.  The  covenant  of  the  social  compact,  "that  all  shall  be  governed  by 
certain  laws  for  the  common  good ;"  and  "the  duty  of  the  people  in  framing 
a  Constitution,  is  to  provide  for  an  equitable  mode  of  making  laws."  Pre- 
amble. 

4th.  A  frequent  recurrence  to  the  fundamental  principles  of  the  Con- 
stitution, and  a  constant  adherence  to  those  of  justice..     Art.  18. 

5th.  That  no  association  of  men  have  any  title  to  obtain  exclusive 
advantages  distinct  from  those  of  the  community  than  what  arises  from 
services  rendered  to  the  public.  That  government  is  instituted  for  the 
common  good,  and  not  for  the  profit  or  private  interest  of  any  class  of 
men.  [This  last  objection  applies  to  the  employment  of  Physicians  as  an 
exclusive  class  or  profession,  who  are  to  have  the  profit  of  the  trafic  taken 
from  the  retailer  and  transferred  to  them.] 

Effect  on  property  rights,  as  to  acquisition. 

We  have  seen  that  alcohol  is  property,  under  the  supreme  laws  of  the 
land,  (the  acts  of  Congress  and  the  United  States  Constitution,)  as  much 
as  tea,  coffee,  clothes,  or  any  article  of  merchandize. 

There  is  no  power  in  the  State  to  prevent  its  being  mixed  up  and  incor- 
porated with  all  other  property  a  citizen  has  a  right  to  acquire.  This  is 
the  condition  of  the  cession  made  to  Congress  by  all  the  States. 

It  being  property  subject  to  acquisition,  and  beyond  the  prohibition  of 
State  laws,  the  State  cannot  pass  a  law  that  one  class  of  men  may  acquire 
and  possess  it,  and  another  class  shall  not.  The  State  may  regulate  the 
means  of  acquiring  property,  but  it  must  leave  every  citizen  free  to  acquire 
it  in  greater  or  less  quantities,  according  to  his  means. 

"This  refers  to  the  leading  case  of  Gibbons  ?;s.  Ogden  &  Wheaten,  which  overthrew 
the  Steam  Boat  monopoly  in  New  York.  Those  who  cite  the  private  opinion  of 
Chancellor  Kent  in  favor  of  the  United  States  Constitutionality  of  the  fifteen  gallon 
law,  would  do  well  to  remember  that  Mr.  Kent  also  gave  his  opinion  in  favor  of  the 
Steam  Bo_e.t  monopoly,  but  was  overruled  by  the  Supreme  Court. 


30 

But  this  law  says  that  those  who  can  acquire  fifteen  gallons  or  fifteen 
dollars  worth  of  this  property,  at  one  time,  may  do  it;  while  it  says 
that  those  who  cannot  acquire  that  amount,  shall  not  acquire  any,  unless 
through  a  violation  of  law. 

Where  is  the  difference  between  this  and  a  law  which  should  prohibit  a 
citizen  from  acquiring  less  than  fifteen  dollars  worth  of  food  or  clothing  at 
one  time  ?     Would  such  a  law  be  just  and  equal? 

Effects  as  to  enjoyment  of  Property. 

Property  is  also  .to  be  enjoyed  according  to  standing  laws.  These  laws 
make  no  distinction  as  to  any  class  of  men  enjoying  a  large  amount  of 
property,  while  another  class  who  have  little,  are  not  to  be  allowed  to 
enjoy  that  little. 

Standing  laws  for  two  hundred  years  have  protected  the  enjoyment  of 
this  property  in  any  quantity  men  chose  to  possess  it.  Until  now  it  could 
always  be  bought  and  sold,  in  any  quantity,  for  any  use.  There  can  be  no 
legal  enjoyment  of  property  without  the  right  to  buy  and  sell.  But  this 
right  is  taken  away  from  a  certain  quantity  of  this  property,  such  as  the 
man  of  moderate  means  can  acquire,  and  yet  the  larger  quantity  of  the  same 
property,  which  the  rich  can  acquire,  is  left  as  free  to  his  enjoyment  as  is 
all  other  property  under  standing  laws.  This  is  as  open  and  manifest  a 
violation  of  the  Constitution  as  it  would  be  to  prevent  a  farmer  from  selling 
over  one  bushel  of  rye  at  a  time,  under  pretence  of  stopping  distillation. 

The  Constitution  declares  that  no  part  of  property  shall  be  taken  away 
from  any  individual,  without  compensation.  This  law  confiscates  one 
seventh  part  of  the  property  in  this  article,  by  declaring  that  the  part  under 
fifteen  shall  not  be  sold,  acquired,  or  enjoyed;  and  it  deprives  all  who  can- 
not obtain  over  a  seventh  part,  from  lawfully  obtaining  any  !  Where  is  the 
difference  between  this  and  a  law  depriving  men  of  acquiring  less  than  the 
seventh  part  of  a  dollar,  or  of  one  hundred  dollars, — or  of  one  hundred 
acres  of  land?  Of  what  avail  are  standing  laws  in  regard  to  property,  if 
the  Legislature  can,  at  will,  make  such  restrictions  as  this  to  limit  its  use, 
acquisition  and  enjoyment  ?  And  as  all  property  comes  under  the  same 
standing  laws,  where  is  the  power  given  in  the  Constitution  to  single  out 
this  property  from  others ;  and  proscribe  it,  or  any  part  of  it  ? 

The  Legislature  is  only  an  agent,  with  the  Constitution  for  its  power 
of  Attorney,  to  act  for  the  people.  If  it  cannot  show  the  express  or  fairly 
implied  grant  of  this  power,  the  exercise  of  it  is  open  usurpation.  Where 
is  such  a  power  given  or  implied  in  the  Constitution  ? 

Effects  on  Equality  of  Laics  and  Rights. 

Again: — The  whole  object  and  design  of  the  Constitution  was  to  insure 
the  making  of  equitable  laws,  and  a  constant  adherence  to  the  principles 
of  justice  is  enjoined. 

The  object  of  this  law  is  to  make  it  very  difficult,  if  not  impossible,  for 
men  of  small  means  to  get  ardent  spirits  lawfully.  It  thus  divides  society 
horizontally,  according  to  property  or  credit,  and  denies  the  first  broad 
principle  of  equitable  laws,  that  every  man  shall  have  his  money's  worth. 
Why  should  your  fifteen  dollars  be  able  lawfully  to  buy  fifteen  measures  of 
property,  while  my  dollar  cannot  lawfully  buy  one,  although  the  seller  is  as 
ready  to  sell  one  to  me  as  fifteen  to  you?  No  sophistry  can  make  this  a 
just  or  equitable  provision  in  any  law,  and  no  other  law  in  existence  has 
any  such  provision  in  it. 

The  broadest  and  largest  principle  in  property  rights,  which  covers  every 
thing  in  our  institutions  is  this — that  every  man,  high  or  low,  rich  or  poor, 
shall  have  the  equal  right  to  acquire,  possess  and  enjoy  liis  money's  worth 
of  all  lawful  property  that  is  susceptible  of  divisibility,  to  the  minimum 
extent  ihc  seller  chooses  to  divide  it 


31 

This  principle  the  act  of  1838  directly  violates,  while  no  other  act  in  the 
statute  book  infringes  it.  Surely  then,  this  is  a  new  and  dangerous  prin- 
ciple in  legislation. 

When  such  is  the  design  and  effect  of  a  law,  got  up  under  great  profes- 
sions of  philanthropy,  it  is  wise  for  the  people  and  for  their  Legislature  to 
ponder  well  the  maxim  of  Washington,  in  his  Farewell  Address: — 

"Resist  with  care  the  spirit  of  innovation  upon  the  principles  of  your 
government,  however  specious  the  pretexts." 

This  principle  may  be  traced  back  to  the  earliest  foundation  of  govern- 
ment in  this  State.  Governor  Winthrop's  definition  of  true  liberty,  was 
this,  in  1GG0: — 

"Civil,  moral,  and  federal  liberty,  consists  in  every  man  enjoying  his  property,  and 
having  the  equal  benefit  of  the  lav.s  of  his  country." 

Does  the  man  whose  limited  means  prevent  his  buying  fifteen  gallons 
at  a  time,  without  great  inconvenience,  or  who  does  not  want  to  use  so 
much  in  a  year,  have  the  equal  benefit  of  this  law  with  the  man  of  large 
means,  who  can  buy  that  quantity  without  inconvenience? 

To  this  equal  enjoyment  according  to  means,  in  every  individual,  and 
this  equal  benefit  of  laws,  whether  of  prohibition  or  privilege,  the  Act  of 
1838  is  utterly  repugnant. 

If  then  the  Bill  of  Rights  be  any  thing  but  a  rhetorical  flourish,  this  act 
is  palpably  a  violation  of  the  Constitution,  and  can  never  be  regarded  by 
the  citizens  as  a  law  of  the  land. 

The  question  of  Expediency  and  Enforcement. 

We  now  come  to  the  matter  of  expediency,  and  the  practical  enforce- 
ment of  this  act.     All  the  argument  tends  to  this  point. 

The  act  was  not  necessary  to  keep  society  together.  There  was  no 
palpable  outrage  on  society  demanding  it,  and  it  was  no  certain  remedy  for 
the  evils  of  intemperance.  It  is  therefore  inexpedient  unless  the  public 
mind  is  so  fully  prepared  for  it,  as  to  readily  settle  down  into  a  general 
acquiescence.  Every  doubt  that  attaches  to  its  expediency,  constitu- 
tionality or  fairness,  will  operate  directly  against  its  enforcement ;  and  if 
not  enforced,  it  will  be  worse  than  no  law  on  the  subject. 

It  is  inexpedient,  because  it  presses  a  moral  cause  beyond  the  rule  of 
good  government.     That  rule  is  well  laid  down  to  consist  in  this  : 

"  To  find  the  maximum  of  voluntary  influence  and  the  minimum  of  legal  coer- 
cion,— and  to  do  nothing  by  law  that  can  be  done  by  opinion,  or  custom,  or  morals, 
or  religion." 

All  that  goes  beyond  this  in  attempting  to  enforce  moral  restraints, 
constitutes  a  force  law,  and  this  is  what  we  mean  by  calling  this  act  a 
force  laio. 

It  is  inexpedient,  because,  before  it  was  passed,  there  was  a  general 
acquiescence  in  the  temperance  reform,  and  even  in  the  laws,  (objection- 
able as  some  of  them  were,)  passed  to  aid  that  reform  ;  but  this  act  will 
embody  resistance  by  extreme  pressure,  and  drive  men  to  an  investigation 
of  the  principles  of  these  laws  of  restraint  upon  lawful  opinions  and  appe- 
tites, which  may  endanger  the  whole,  and  carry  you  back  far  beyond  the 
point  you  started  from. 

A  law  that  cannot  be  enforced  will  amount  to  universal  license.     The 
common  sense  of  common  justice  will  revolt  at  such  a  law,  and  juries  wil 
not,  perhaps,  be  found  to  agree  upon  verdicts  under  it.     The  constit 


32 

tionality  of  this  law  will  be  argued  to  them,  and  they  have  the  right  to 
determine  the  law  as  well  as  the  fact,  in  each  case. 

Laws  all  depend  on  public  opinion;  especially  so  when  designed  to 
enforce  a  moral  reform.  Public  opinion,  which  was  doinc  all  that  could 
be  hoped  for,  in  this  reform,  will  react  under  the  pressure  of  this  law  of 
prohibition  ;  to  what  extent  remains  to  be  seen,  but  inevitably  to  the  extent 
of  rendering  this  law  nugatory. 

Public  opinion  will  sustain  all  proper  and  necessary  restraints  of  whole- 
some regulation,  applied  to  places  and  occupations,  and  not  to  property  and 
classes.  But  it  will  resist  prohibition,  and  in  that  struggle  it  may  break 
down  the  whole  barrier  which  custom  and  moral  influence  have  raised 
against  habits  of  dangerous  indulgence.  For  these  consequences  those 
who  shall  press  this  bad  law,  if  they  retain  it,  will  be  morally  responsible. 

The  law  is  inexpedient,  because  it  was  not  called  for  by  the  necessities 
of  the  temperance  reform.  It  is  the  few  who  want  excitement,  and  who 
cannot  wait  for  the  good  seed  sown  to  spring  up  and  bear  fruit — it  is  they, 
and  not  the  cause,  that  have  demanded  this  experiment,  and  therefore  it 
must  fail. 

The  only  proper  use  of  penal  laws  is  to  apply  punishment  and  sometimes 
prevention,  to  overt  acts,  wrong  in  themselves.  This  law  is  designed  to 
prohibit  the  temperate  use  in  all  of  the  comparatively  poorer  classes, 
because  some,  may  use  it.  intemperately.  It  cannot  hold  good  in  law  or 
morals  that  all  men  shall  be  denied  a  right,  because  some  may  use  it 
wrongfully.  It  is  lawful  to  drink.  Shall  all  men».be  denied  this  right 
because  some  may  drink  too  much  ?  Why  cut  off"  my  hand,  because  my 
neighbor  may  imbrue  his  hand  in  blood  1 

It  is  in  the  nature  of  a  law  against  freedom  of  opinion, — for  what  is  total 
abstinence  but  the  result  of  opinion?  Good  citizens  differ  as  to  the  neces- 
sity of  total  abstinence.  It  is  therefore  a  conflict  of  creeds,  and  systems 
of  living.  Your  law  comes  in.  in  aid  of  one  creed  and  one  system  against 
the  other.  What  is  this  but  a  revival  of  the  old  doctrine  of  wholesome 
persecution,  to  convert  men  to  particular  creeds  and  notions  by  force  of 
penal  laws,  after  argument  and  moral  suasion  have  failed  ? 

It  is   a  violation  of  the   original   Temperance   Constitution   and  pledge. 

Those  who  began  the  Temperance  reform  repudiated  all  resort  to  force 
laws.  Such  were  the  terms  of  the  original  enlistment  in  this  good  cause, 
and  the  attempt  to  pervert  it  to  purposes  of  legal  persecution,  is  a  departure 
from  the  original  Constitution,  and  absolves  from  further  union  or  coopera- 
tion with  Temperance  Societies,  all  who  do  not  mean  to  become  perse- 
cutors, and  who  disclaim  invoking  the  strong  arm  of  the  law  to  punish 
men  for  not  thinking  as  they  do. 

The  Constitution  of -the  American  Temperance  Society,  which  first 
promulgated  the  great  moral  remedy  of  total  abstinence,  and  which  remains 
unchanged  to  this  day,  utterly  repudiates  all  force  laws.  This  will  be  seen 
by  an  examination  of  the  articles  of  association.     The  preamble  says  : 

"  Whereas  the  various  measures  which  the  friends  of  Christian  morality  have 
adopted,  though  not  altogether  unsuccessful,  have  been  found  quite  insufficient  to  give 
any  effectual  and  permanent  check  to  this  desolating  evil ;  and  whereas  some  more 
vigorous  means  are  evidently  required, — therefore  the  friends  of  domestic  and  social 
happiness,  wishing  to  do  all  in  their  power  to  promote  the  welfare  of  their  fellow  men, 
resolve  to  form  a  Society"  &c. 

And  what  were  these  "  more  vigorous  means"?  Not  pains  and  penal- 
ties, but,  (says  the  preamble,) 

"  Some  eystem  of  instruction  and  action  which  will  make  a  steady  and  powerful 


33 

impression  on  the  present  and  following  generations,  and  in  this  way,  ultimately  effect 
a  change  of  public  sentiment  and  practice  in  regard  to  the  use  of  intoxicating  liquor, 
and  thus  put  an  end  to  that  wide  spreading  intemperance,  which  has  already  caused 
such  desolation  in  every  part  of  our  country." 

Not  an  allusion  to  force  laws,  fines  or  imprisonment.  It  was  to  be  a 
system  of  instruction,  not  of  prosecution  ; — a  change  was  to  be  made  in 
public  sentiment  by  appeals  to  understanding  and  feeling, — not  by  pimps, 
spies,  and  informers  ! 

A  change  was  to  be  made  in  regard  to  the  voluntary  use,  not  whips  and 
scorpions,  fines  and  bolts,  fire  and  fagot  to  be  applied  to  the  dealer  in  the 
article.  His  customers  were  to  be  taken  from  him  by  moral  suasion  and 
the  change  in  fashion  and  habit,  not  by  indictment ;  for  when  public  sen- 
timent abolished  the  use,  the  sale,  which  was  the  consequence,  not  the  cause 
of  the  use,  would  disappear  with  it ! 

The  only  qualification  of  membership,  was  to  abstain  from  the  use  of 
intoxicating  liquor,  and  the  following  are  all  the  duties  enjoined  in  the  Sth 
article,  upon  the  officers  and  agents  of  this  society,  in  carrying  forward 
the  work,  viz.  : 

"To  make  appropriate  communications,  by  pamphlets,  correspondence,  and  personal 
interviews,  to  ministers  of  the  gospel,  to  physicians,  and  others,  and  to  consult  and 
co-operate  with  them  for  the  purpose  of  guarding  those  under  their  influence  against 
the  evils  of  intemperance  ;  to  take  pains,  in  all  proper  methods,  to  make  a  seasonable 
and  salutary  impression,  in  relation  to  this  subject,  on  those  who  are  favored  with  a 
public  and  refined  education,  and  are  destined  in  various  ways  to  have  a  leading  influ- 
ence in  society  ;  to  make  it  a  serious  object  to  introduce  into  the  publications  of  the 
dny,  essays  and  addresses  on  the  subject  (*f  intoxicating  liquor,  and  to  induce  teacheis. 
and  those  concerned  in  the  support  of  schools,  to  labor  diligently  to  impress  the  minds 
of  the  young  with  the  alarming  and  dreadful  evils  to  which  all  are  exposed  who  in- 
dulge themselves  in  the  use-  of  strong-  drink  :  to  mike  affectionate  and  earnest  adz- 


dresses  to  Christian  churches,  to  parents  and  guardians,  to  children,  apprentices,  and 
servants,  and  all  other  descriptions  of  persons,  and  to  set  clearly  before  them  the  effect 
of  spirituous  liquor  on  health,  on  reputation,  and  on  all  the  temporal  and  eternal  inte- 
rests of  men,  and  to  urge  them,  by  the  most  weighty  arguments,  drawn  from  the 
present  and  the  future  world,  to  keep  themselves  at  a  distance  from  this  insidious  and 
destructive  foe;  to  do  whatever  is  practicable  and  expedient  towards  the  forming  of 
voluntary  associations  for  the  purpose  of  promoting  the  ends  of  this  Society  ;  and,  in 
general,  to  labor,  by  all  suitable  means,  and  in  reliance  upon  the  divine  blessing,  to  fix 
the  eyes  of  persons  of  both  sexes,  and  of  all  ages  and  conditions,  on  the  magnitude 
of  the  evil  which  this  Society  aims  to  prevent,  3tid  on  the  immeasurable  good  which  it 
aims  to  secure  ;  and  to  produce  such  a  change  of  public  sentiment,  and  such  a  renova- 
tion of  the  habits  of  individuals,  and  the  customs  of  the  community,  that,  in  the  end,. 
temperance,  with  all  its  attendant  blessings,  may  universally  prevail." 


Here  "  thr  divine  blessing,''  and  not  "  the  strong  arm  of  the  law,"  is 
invoked,  as  the  sole  reliance  in  promoting  the  cause. 

This  was  the  original  purpose  and  pledge  of  the  Temperance  reform  ; 
and  Mr.  Chairman,  as  one  of  its  earliest  adherents  and  disciples,  lit- 
erally a  pioneer  in  the  work,  and  holding  as  I  still  do,  the  relation  of 
membership  to  some  five  Temperance  Associations,  of  two  of  which  I  drew 
the  Constitutions  and  made  the  firstreports  in  1827  ;  I  here  charge  the  mov- 
ers of  this  law  temperance,  which  is  now  to  be  enforced  by  pains  and  penal- 
ties, with  a  gross  departure  from  the  original  principles  of  the  institution. 

I  hold  them  as  guilty,  (in  a  moral  point  of  view,)  of  perverting  the  true 
fiiith  of  temperanceA  and  becoming  persecutors,  as  were  the  bigots  in 
rp'igion,  who.  changed  the  mild  influences  and  the  long  suffering  of  early 
Christianity,  into  the  rack,  the  gibbet,  and  the  fagot. 


34 

With  such  persecuting  and  furiously  proselyting  temperance,  I  disclaim 
all  association,  as  I  would  with  such  religion.  It  has  taken  the  sword,  and 
it  will  perish  by  the  sword. 

Thus  do  we  find  this  obnoxious  law,  not  only  violating  the  Constitutions 
of  the  United  States  and  the  State,  but  the  Temperance  Constitution 
itself.  And,  are  free  men  or  temperance  men,  to  be  called  on  to  support 
such  a  law  ? 

This  law,  and  the  means  taken  to  enforce  it,  are  a  perversion  of  the 
original  temperance  reform,  in  another  important  respect.  The  design 
never  was  to  reach  the  drunkard  or  the  tippler.  The  constitution  of  the 
society  says : 


M  It  is  to  be  adopted  as  a  principle,  that  while  we  are  to  make  use,  perseveringly,  of 
all  fit  and  promising  means  for  the  reformation  of  those  who  have  already,  in  different 
degrees,  contracted  habits  of  intemperance, — the  utility  of  the  institution  must  chiefly 
consist  in  guarding  against  danger,  those  who  are  yet  uncontaminaled  by   this  loath 
some  and  fatal  vice." 


But  what  say  those  who  press  this  law  upon  us?  Why,  that  they  are 
wearied  in  well  doing;  that  they  have  convinced  all  who  they  think  are 
fit  to  be  reasoned  with,  and  that  a  class  of  men  are  left  who  are  too  obsti- 
nate to  be  convinced,  and  they  must  have  law  to  put  them  down  and  send 
them  to  prison. 

This  law,  then,  is  designed  expressly  to  persecute  and  punish  the  incor- 
rigible, or  those  who  will  not  be  convinced  ;  and  therefore  it  is  a  direct 
violation  of  the  mild  doctrines  upon  which  the  temperance  reform,  like  pure 
Christianity,  was  placed  by  its  founders,  e'er  charity  and  meekness  had 
been  changed  to  ferocity  and  despotism  by  the  ambition  of  a  few  ruthless 
.eaders,  and  the  lust  of  party  power. 

No  liberal  man  who  started  in  the  original  temperance  reform,  before  it 
became  degraded  into  a  persecuting,  political  party,  can  fail  to  perceive  the 
great  change  in  all  the  movements  of  Temperance  Societies.  This  change 
has  morally  absolved  him  from  an  association  with  persecutors  and  proscrib- 
es. He  cannot  go  into  their  meetings  now,  as  he  once  did,  and  hear  tem- 
perance discussed.  It  is  all  law  and  the  lash.  Moral  and  social  influences 
are  almost  scouted  there,  as  mean  and  spiritless,  and  the  cry  is,  "give  us 
the  law,  give  us  the  power,  down  with  our  opponents;  murderers,  thieves, 
robbers!  crucify  them,  crucify  them  !  !" 

Instead  of  going  into  the  social  circle  to  protect  from  the  habit  by  moral 
influence,  those  who  have  not  fully  acquired  it,  this  law  assumes  to  operate 
on  those  whose  appetites  cannot  be  restrained  without  enforcement  of  penal 
enactments.  It  aims  at  those  of  supposed  fixed  habits  ;  it  leaves  the 
highest  and  richest,  who  are  generally  supposed  to  set  the  fashions, 
to  indulge  freely  in  their  choice  wines  and  their  fifteen  gallons  of 
strong  proof;    while   it   attempts  to   hedge   round  the   poor  man,  and   to 


35 

cut  him  oft"  from  hia  little  indulgence,  because  he  has  not  the  means 
to  buy  larger  and  drink  deeper.  Can  such  a  law  commend  itself  to  the 
common  understanding  and  the  common  conscience,  as  a  law  which  those 
who  exempt  themselves  from  it,  really  passed  for  the  common  good  ? 

Temperance  has  been  injured  by  force  Laws. 
The  cause  succeeded  better  on  its  original  moral  basis,  than  it  has  since 
done  by  attempting  to  bring  in  the  aid  of  force  laws,  contrary  to  its  own 
constitution.     Moral  influences  began  to  operate  generally  in  1828 — 29. 

Force  laws  began  to  be  applied  and  felt  in  1832 — 33.  Contrast  the  two 
periods  of  five  years  each,  under  moral  and  legal  appliances. 


TABLE  No.  1. 

Schedule  of  Imports  and  Exports  of  Foreign  Ardent  Spirits  in  the  United 

States,  from  1829  to  1833,  inclusive.* 


Years. 

Imported. 

Exported. 

Home  Consumption. 

1899 

3,4-23,1  DO 

735,  0U 

2,688,000 

1830 

1,692,000 

706,000 

986,000 

1831 

2,491,000 

639,000 

1,852,000 

1832 

2,810,000 

662,000 

2,1 '8,000 

1833 

2,954.000 

728,0  0 

2,226,000 

Total  5  years. 


13,370,000 


,470,000 


9,0  0,000 


Imports  and  Exports  of  the  United  States  from  1834  to  1839. 


Years. 


imported. 


Exported 


Home  »  onsumptioii. 


1834 

2,511,000 

511  000 

2,0  0,000 

1835 

3,394,000 

310,000 

3,084,000 

183G 

3,524,  00 

272,000 

3,252,000 

1837 

2,672,000 

299,000 

2,373,000 

1838 

3,092,000 

232,000 

2,860,000 

Total  5  years, 

15,193,00U 

1,624,000 

13,509,000 

13,310,000 

3,470,0,0 

9,900,000 

lncie:.se  of  tlie  last 

1,823,000 

1,846,000 

3,669,000 

5  years. 

Decrease  of  Exports. 

*  This  statement  is  made,  not  from  the  Temperance  tracts,  but  from  returns  certified  by  the  Treasury 
Department  at  Washington,  and  politely  transmitted  to  Mr.  H.  by  the  Secretary  of  that  Department. 
The  hundreds  aie  omitted  as  unimportant,  and  to  avoid  unnecessary  figuies. 


It  appears,  from  this  comparison,  that  the  average  consumption  of  foreign 
spirituous  liquors  in  each  year,  for  five  years,  from  1829  to  1883,  when  moral 
suasion  and  "  the  divine  blessing"  were  relied  on,  was  1,980,000  gallons. 

For  the  five  subsequent  years,  when  the  effects  began  to  be  felt  of  calling 
in  "the  strong  arm  of  the  law,"  the  average  consumption  of  each  year  has 
been  2,713,S00  gallons;  shewing  an  average  increase  in  each  year  during 
the  last  five,  of  833,800  gallons. 

The  decrease  under  moral  suasion,  between  1829  and  1833,  was  442, COO 
gallons.  The  increase  between  1834  and  1838,  under  force  laws,  is  800, (iCO 
gallons.     Net  difference  against  the  latter  period,  1,276,000  gallons. 


36 

The  average  annual  decrease  from  1829  to  1833,  was  92,000  gallons. 
The  average  annual  increase  from  1S33  to  1839,  has  been  172,000  gallons. 
Difference  against  the  latter  period  annually,  20-1,000  gallons. 

Imports  into  Boston. 
This  unfavorable  result  for  the  cause  of  temperance  is  shewn  still  more 
decisively  in  the  State  of  Massachusetts,  where  law  Temperance  was  first 
started  in  1831 — 2,  and  hs.s  been  pushed  farther  than  in  all  the  other  States 
in  the  Union. 


TABLE  No.  2. 

Importations  of  Spirits  and  Wines  into  Boston,  and  Exports  of  Spirits 

(foreign)  from  1829  inclusive,  to  1839,  (10  years.) 


Year 

Branny 

Rum 

Gin 

Total 
Spirits 

Exported 
Ko  reign 

Home 
Cons'mp 

tion 

Wine 
Tmpoit'd 

J  olal 

Wines 

&  Spirits 

Do- 
mestic 
Exp'ld 

J  829 

|      85,750 

|    319,790 

92  -:t)0    | 

497,940 

181,964 

315,980 

466,500 

|      954,440 

1 

1830 

21,100 

2t>5,810 

78,160   | 

364,i(70 

1 18,829 

215,241 

2  0,680 

|      644,750 

|      4,503 

1831 

60,600 

348.820 

104,510    | 

508,930 

150,626 

304 

511  : 

|  1,020,290 

|    26,035 

1832 

'      9i,840 

222,810 

165,468   | 

480,110 

186,151 

293.959 

887,850 

1,361 

|    2,545 

1833 

1-9,030 

135,690 

127,  70   | 

391,7  9.) 

173,304 

4  8,486 

620,840 

|  1.012,630 

|    47,530 

1834 

..8,550 

117,600 

73,810   | 

279,960 

98,65  i 

181,304 

557,790 

|      837,750 

|  230,948 

1835 

121,730 

156,420 

120,850   j 

401,7  0 

35,712 

365,988 

.   4.-9,650 

|      89  ,350 

234,^11 

1836 

156,420 

190,180 

177,350    | 

523,950 

41,696 

482,254 

737,94  i 

|  l,-61,8Sy  |  '  11,109- 

1837 

72,360 

8  vi-0 

116,460   j 

2^8,14  > 

22,452 

|    255.  its 

397, n(>0 

|      675.!  4n 

I     64,814 

1838 

98,650 

133,27,) 

2  5,4  .0  | 

437,320 

16,  44 

|     421,276 

374    8(1 

|     811,4011 

1  1 '5,169 

Taking 

Five  Yt 

iars,  fro 

m  1829 

inclusiv 

z  to  1834. 

Frm 

1829 
M»>34 

Brandy 

Rum 

Gin      1 

Total 
Spirits 

Exported 
Foreign 

Home 

Cons'mp 
tion 

Wine 
Import'd 

i  otal 

Wines 

&  Spirits 

Do- 
mestic 
Exp'td 

Frm 

1834 
to '39 

3^8,320 

l.,2xj  92  1 

5u7,tiJ0   j 

x,  242,84  J 

810,871 

1,431,970 

2,767  230 

5,000  670 

Tut'l 

51  >,7i0    | 

6*0,79  i 

603,870   || 

1,921,070  | 

*14,56il 

1   706,51(i  1 

2556,460 

4  477,530  | 

426,143 

Increase  of  Brandy,       191,39  ) 
Decrease  of  Rum,  605,131 

Increase  of  Gin,  126,270 

Decrease  of  Spirits,        321,770 
Decrease  of  Exports,      596,31  I 
Increase  Consumption,    274,540 
jifl  crease  ) 

•of  Domestic  >  101,085 

Exported,  ) 

Wine  average  the  first  5  years,  per  year, 

do.        do.  second  5  years,       - 

Average  Consumption  of  Spirits  tlie  last  3  years, 
Aveiage  Consumption  the  seven  preceding  years, 


Decrease  of  Wines 

Imported 
Decrease  of  Wines  and 

Spirits  Imported 
Deducting  fm.  decrease 

of  Exports, 
Leaves  increased  Con-  ; 
sumption   of   Wines  j 
and  Ardent  Spirits, ! 


210,770 
5C-2,549 
596,314 

73,774 
gallons. 


Spiiits.  \ 

Average  Consumption  \  286,394 
tlie  firs"t5yrs.  to  1834,  ) 
Average  Con  sum  p.      j 

per  year  the  last  5  >  341,3(2 

years,  to  1839,  ) 

Difference  in  the  av-  )    ,j  Qra 

e  age    of   the    two  £    0,1>9U° 

periods.  } 

rr.3,446 

511,292 
3S6,4n6  gallons. 
282,752        " 


Showing  in  favor  of  7  former  years,  e;:di  year,  ------- 

Average  Consumption  of  two  last  yeais,  -------- 

Still  siiowing  a  greater  average  than  8  preceding  years,  by      -        -        -        -        - 

Increased  Importation  of  Spiiits  into  Boston  in  1838  over  1837,       .... 

Diminished  Import  of  Wines  during  same  time,      ------- 

Increase  of  Importation  of  Spiiits  in    838,  over  the  average  of  1836,  '37,  and  '38, 
Import  of  1838,     -- ------ 

Difference  in  1838, 

Increased  Consumption  of  183S,  over  t lie  average  Consumption  of  1836,  '37,  and  '38, 
Increased  Consumption  of  Spirits  in  1838  over  1837,  ------ 


103,654  gallons. 

33)s,482        " 
30,790  gallons. 

159,181 
22,920 
4  3,137 
437,320 

24,183  gall,  ns. 
34 ,870      do. 
165,588      do. 


Boston  furnishes  rather  less  than  one  twenty-eighth  part  of  the  whole 
revenue  of  the  United  States,  and  yet  in  1838  one-third  of  the  increased 
imports  of  spirits  in  the  whole  Union,  was  made  at  the  port  of  Beaton! 


37 

A  startling  fact  this,  that  where  the  laws  have  been  severest,  importation 
has  been  largest. 


BC3BM 


TABLE  No.  3. 
Comparison  of  Imports  and  Exports  of  Spirits  in  Boston   beticeen  two 
periods  of  five  years, — from  1829  to  1834,  and  from  1831  to  1839. 

Five  years,— from  1829  to  1834. 

Imported.       |        Exported.        |       Consumption.      ||  Domestic  Spirits  exported  ironi  1831  to  l«3o. 
27242^8 W        i  810,874  |  l743l797rj~      fj  235,- '58  ~ 

Five  years,— from  1834  to  1839^ 

Imported.       |        Exported.        |       Consumption.      |j  Domestic  Spirits  exported  fro  h  1835  to  1»39 

1,921,1.70        j  214,560  j  1,7U6,510  [j  42u',143  " 

Showing  increased  Consumption  the  last  5  years,        ---___-       274,540  gallons. 

Increased  Export  of  Domestic  Spirit-  the  last  4  years,  in  two  periods  of  8  years,        -        lul,.  85     do. 

Averaae  Consumption  of  Foreign  Spirit.-;  for  the  first  period  of  five  years,  per  year,  886,394     Be 

Average  Consumption  of  the  last  five  years,  --.---___       341,308     do. 

Increased  Average,  ------    ^-        -        ...        .  54,908 

Average  Consumption  the  last  three  years,  ------  386,406 

Average  of  the  seven  preceding  }  ears,  -------  ■_      750 

In  favor  of  the  7  first  year-',  ---------  103,054 

Average  Consumption  of  two  last  years,        ------  338 

Average  of  the  eight  preceding  years,  ------  3  .'7,690 

Increased  averace  of  the  two  last  years,  ------  3  ,792 

Increased  Consumption  of  1638  over  1637,  ----..-.        155,588  galls. 

The  whole  increase  of  1838,  in  the  United  States,  is  497,000  galls.,  one  third  of  which  is  in  Boston,  alone1' 


Another  singular  fact  in  these  statistics  is,  that  while  the  consumption 
of  alcohol  in  the  form  of  rum,  brandy,  and  gin,  has  increased,  its  use  in 
the  form  of  wine,  has  diminished.  The  wines  consumed  in  the  United 
States,  in  1837,  were  5,992,000  gallons.  In  1838,  4,047,000  gallons. 
Decrease,  1,945,000  gallons. 

The  wines  imported  into  Boston  in  1837,  were  397,000  gallons.  In 
1838,  374,000  gallons.     Less,  23,000  gallons. 

And  yet  all*  the  force  laws  have  been  applied  exclusively  to  ardent  spirit?, 
which  have  increased  under  them,  while  wine,  that  has  been  left  without 
restraint,  has  diminished,  under  moral  suasion.  Had  the  restraints  been 
applied  to  wine  and  not  to  spirits,  the  reverse  would  unquestionably  have 
appeared.     Such  are  the  laws  of  human  nature. 


Increased  Sales  in  Boston. 

"We  are  prepared  to  shew  further,  the  unfavorable  influence  of  force  laws 
upon  Temperance,  by  the  increased  sales  from  Distillers  and  large  dealers, 
since  this  law  was  first  agitated.  We  shall  offer  direoi  proof  of  this  fact, 
and  shall  also  shew  that  the  sales  have  been  very  large,  and  equal  to,  if  not 
greater,  than  in  former  years,  by  the  dealers  in  Boston,  for  consumption  and 


38 

sale  in  the  counties  where  for  three  or  four  years  past  the  Commissioner* 
have  withheld  all  licenses.  The  fact  of  the  increased  sale  under  prohi- 
bition, is  well  understood  by  the  large  dealers  in  this  merchandize,  and  can 
be  demonstrated  by  an  examination  of  their  books. 

In  the  midst  of  the  senseless  and  unchristian  vituperation  cast  upon  this 
portion  of  our  fellow  citizens,  by  the  temperance  persecutors  of  better  men 
than  themselves,  it  is  but  just  to  recur  to  this  evidence  of  their  fairness  and 
their  disposition  to  do  right.  It  wili  be  understood  better  hereafter,  should 
this  law  not  be  repealed. 

But  let  it  now  be  stated  and  remembered,  that  so  far  as  profit  is  con- 
cerned, the  dealers  are  directly  interested  in  keeping  up  this  law.  It  will 
put  money  into  their  pockets.  It  will  increase  the  consumption,  increase 
the  demand,  increase  the  sale,  and  increase  the  profit.  It  has  had  this 
effect  already,  and  will  continue  to  have  this  effect  with  increasing  force, 
the  longer  it  is  persisted  in.  I  respect  these  citizens  for  the  evidence  they 
thus  give  of  a  desire  to  reform  the  law,  though  it  will  be  at  a  loss  of  profit, 
rather  than  avail  themselves  as  they  might,  of  a  bad  law,  to  increase  their 
profits. 

The  immoral  tendtncy  of  the  Law. 

This  brings  us  to  consider  the  influence  of  such  a  law  on  morals  and  the 
public  justice.  It  will  be  evaded  in  all  possible  forms,  where  it  cannot  be 
openly  disregarded.  It  gives  a  free  license  to  wine  shops,  which  are  now 
restrained,  and  under  the  name  of  wine,  all  things  can  be  sold. 

"Tell  me  where  wine  ends  and  brandy  begins,"  was  the  shrewd  re- 
mark of  a  dealer  who  was  asked  what  he  should  do  if  this  law  was  not 
repealed. 

It  will  induce  malicious  prosecutions  on  one  side,  revenge  and  violence 
on  the  other,  and  perjury  in  your  Courts  on  both.  It  will  engender  bigotry 
in  the  prosecutions,  and  hypocrisy  in  those  who  will  indulge  their  appetites 
secretly,  while  openly  pretending  to  go  for  the  law. 

It  has  excited,  and  will  continue  to  excite,  angry  feelings  and  bitter 
collisions,  destructive  of  good  neighborhood  and  the  social  affections. 
Your  criminal  Courts  will  be  filled,  not  only  with  prosecutions  for  violations 
of  this  Act,  but  for  the  breaches  of  peace,  slanders,  libels,  and  personal 
assaults,  that  will  grow  out  of  the  vain  attempts  to  enforce  it.  In  a  word, 
instead  of  a  law  of  prohibition,  or  of  regulation  even,  it  will  become  iu 
effect,  a  law  of  universal  license. 

The  Expense  of  Enforcing  such  a  Law. 

lias  the  cost  been  counted?  There  will  be  great  resistance  to  so 
unreasonable  a  law,  and  the  costs  of  criminal  prosecutions  of  all  kinds, 
growing  out  of  it,  will  greatly  enhance  the  public  expenses  in  the  adminis- 
tration of  justice,  which  already  costs  $31,000  annually,  in  this  Com- 
monwealth. 

Who  will  pay  this  additional  expense  ?  Will  the  getters  up  and  sup- 
porters of  this  law?  At  present  it  must  fall  upon  the  State,  already 
obliged  to  borrow  to  meet  the  excess  of  her  current  expenses,  over  the 
annual  income.*  The  Governor,  in  his  annual  Address,  alludes  to  the 
increase  of  County  balances,  as  among  the  causes  of  increased  expendi- 


*  To  escape  from  this  unpopular  effect  of  the  law,  the  Legislature  subsequently  threw 
the  County  balances  upon  the  Counties,  and  took  the  fines  for  the  General  Treasury. 
But  who  pays  ?  Is  it  any  saving  to  pay  a  State  tax  by  calling  it  a  County  tax  ?  Will 
a  citizen  of  Boston,  for  instance,  find  it  cheaper  to  pay  County  balances  ae  a  Suffolk 
man,  than  he  would  as  a  Massachusetts  man  ? 


39 

lures.  In  1832,  these  balances  were  828,626.  In  1838,  tliey  were 
868,680,  showing  an  increase  of  $40,000.-  Much  of  this  grows  out  of 
prosecutions  under  force  temperance  laws.  The  increased  expenses 
between  1836  and  1S38,  have  been  larger  in  the  prohibitory  than  in  the 
licensing  Counties. 

The  angry  feelings  this  laio  engenders. 

These  are  to  be  taken  into  the  account  where  a  new  and  unheard  of 
law  is  made,  under  they  pretence  of  improving  the  moral  condition  of  the 
people,  and  promoting  the  social  affections. 

This  law  will  not  only  prove  to  be  the  mother  of  hypocrisy  in  those  who 
enforce  and  those  who  evade  it,  but  it  will  engender  angry  and  vindictive 
feelings.  It  singles  out  for  proscription  and  punishment,  a  respectable 
class  of  citizens,  whose  business  has  been  sanctioned  by  the  laws  for  two 
hundred  years. 

Assertions  like  these  are  made  in  reference  to  such  men,  by  one  of  your 
honorable  Senators,  who  voted  for  this  law.* 

"They  ought  to  be  charged  in  account  annually,  for  one  half  the  pauperism,  one 
half  the  insanity,  one  half  the  conflagrations,  one  half  the  suicides,  thefts,  murders, 
and  rapes  of  society." 

Epithets  like  the  following  are  heaped  upon  these  citizens  by  the  news- 
paper organ  of  the  supporters  of  this  law,  which  daily  grossly  and  openly 
violates  the  law  of  libel,  (if  there  be  such  a  law,)  while  exclaiming  with 
horror  against  other  violators  of  law  ! 

[Epithets  from  the  Mercantile  Journal.} 

"  Whig  liquor  dealers,  whose  inclination  to  deal  in  rum  is  more  than  a  match  for 
their  patriotism  ;  petty,  little  faction  ;  dictators  of  the  parly  ;  playing  a  deep  game  ; 
preconcert,  mancenvering,  and  fraud  ;  selfish  and  private  ends  ;  secresy  of  some  eastern 
despotism;  tainted  with  fraud,  treachery,  usurpation,  proscription,  and  favoritism  > 
proscriptionists  ;  Rum  Whigs,  and  Rum-sellers  ;  striped  pig  liquor  dealers  !" 

Harsh  epithets  have  led  to  harsh  laws.  This  law  was  preceded  by  a 
systematic  attempt  to  create  a  new  moral  offence  in  society.  Professedly 
christian  men  publicly  branded  their  fellow  citizens  who  were  as  free  from 
crime  or  evil  intent  as  themselves,  with  robbery  and  murder. 

I  deprecate  in  Christian  ministers,  whose  moral  influence  would  else  be 
as  salutary  in  this  cause  as  their  learning  is  eminent,  remarks  like  these, 
calculated  to  stir  up  worse  passions  than  intemperance  itself  engenders. — 

"  I  challenge  any  man,  who  understands  the  nature  of  ardent  spirits,  and  yet  con- 
tinues to  be  engaged  in  the  traffic,  to  show  that  he  is  not  involved  in  the  guilt  of 
murder." — Lyman  Beechf.r. 

"  No  man  can  act  on  Christian  principles,  or  do  a  patriot's  duty  to  his  country,  and 
make  or  sell  the  instruments  of  intoxication." — Henry  Ware. 

"The  evils  of  intemperance  can  never  cease  until  the  virtuous  in  society  shall  unite 
in  pronouncing  the  man  who  attempts  to  accumulate  wealth  by  dealing  out  poison  and 
death  to  his  neighbor,  as  infamous." — John  Fierpont.* 

In  contrast  with  these  unchristian  denunciations,  I  love  to  hear  opinions 


*Hon.  S.  G.  Goodrich,  of  Norfolk. 

"And  yet,  strangely  inconsistent  as  it  must  seem,  these  estimable  and  reverend 
gentlemen  have  been  for  years,  and  still  are,  supported  in  their  parishes,  to  a  very 
considerable  extent,  by  the  men  they  pronounce  traitors,  murderers,  and  infamous  ! 
Are  they  not,  by  their  own  showing,  content  to  receive  from  these  men  the  price 
of  blood  ? 


40 

]\kc.  this,  from  wise  and  eminent  men  in  the  land.     It  will  do  more  good 
than  volumes  of  abuse,  or  a  whole  code  of  force  laws  : — 

"  Beinrr  satisfied  from  observation  and  experience,  as  well  as  from  medical  testimony, 
that  ardent  spirit,  as  a  drink,  is  not  only  needless,  but  hurtful ;  and  that  the  entire 
disuse  of  it  would  tend  to  promote  the  health,  the  virtue,  and  happiness  of  the  com- 
munity, we  hereby  express  our  conviction,  that  would  the  citizens  of  the  United 
States,  and  especially  all  youvg  men,  discontinue  the  use  of  it,  they  would  not  only 
uromote  their  own  personal  benefit,  but  the  good  of  their  country  and  the  world. 
1  Signed,  JAMKS  MADISON, 

ANDREW  JACKSON, 
JOHN  QU1NCY  ADAMS." 

Does  public  opinion  demand  this  Law  ? 

This  is  not  a  mere  question  of  majorities.  To  make  such  a  change  as 
this  in  legislation,  affecting  voluntary  morals,  and  not  the  immediate 
exigencies  of  society,  the  demand  of  public  opinion  should  be  open,  mani- 
fest, unquestionable,  and  to  a  degree,  unanimous.  The  sudden  passage 
of  this  law  in  1S33,  was  a  surprise  upon  the  public.  Jt  was  the  result  of 
external  pressure  upon  the  Legislature,  by  self  constituted  societies,  and 
of  an  ex-parte  hearing  before  an  ex-parte  committee.  No  law  ever  raised 
a  more  decided  opposition,  from  the  moment  of  its  passage.  It  has  kept 
the  community  in  a  broil  ever  since.  What  has  been  the  popular  expres- 
sion as  indicated  by  the  return  of  members  this  year?  (1839.) 

Elections  of  twenty-three  Senators  by  the  people  have  been  prevented, 
solely  by  opposition  to  this  law,  in  six  out  of  fourteen  counties,  namely, 
Suffolk,  Worcester,  Middlesex,  Norfolk,  Hampden,  and  Franklin,  leaving 
but  seventeen  chosen  by  the  people. 

In  the  Senate  of  1838,  twenty-four  Senators  voted  for  the  law,  and  nine 
against  it.  Of  the  twenty-four  who  voted  for  the  law,  nineteen  were  can- 
didates for  re-election.     Ten  were  chosen,  and  nine  were  defeated. 

Of  the  nine  Senators  who  voted  against  the  law,  five  were  candidates; 
three  were  chosen,  and  two  defeated. 

The  popular  vote,  as  far  as  it  can  be  estimated,  from  the  known  opinions 
of  the  candidates,  without  regard  to  party,  gave  the  following  results  : — 

In  Suffolk,  the  majority  against  the  law  was  5099.  In  Worcester,  the 
opponents  of  the  law  threw  an  average  of  638  more  votes  than  its  friends. 
In  Franklin,  the  majority  over  the  candidate  who  would  not  declare 
against  the  law,  was  G43.  Here  is  a  majority  of  8049  in  three  counties, 
which  all  the  other  counties  cannot  balance  on  the  other  side. 

In  Hampden,  the  candidates  supported  on  open  ground  of  opposition  to 
the  law,  combining  both  parties,  had  3805  votes,  to  2(516  for  advocates 
of  the'law.  Difference  1189.  Mr.  Boise,  who  voted  for  the  law,  was  in  a 
minority  of  416.  Mr.  Ives,  who  opposed  the  law,  in  a  minority  of  204. 
An  entire  liberal  ticket  prevented  an  election. 

In  Norfolk,  three  candidates  who  had  voted  for  the  law,  were  defeated. 
The  two  candidates  having  the  highest  votes,  were  against  the  law.  The 
scattering  for  the  liberal  ticket  would  have  elected  them. 

In  Bristol,  one  who  voted  for  the  law  was  beaten.  Those  chosen  were 
not  supporters  of  the  law,  and  one,  (Mr.  Whitmarsh)  had  published  his 
opposition  to  it,  and  his  determination  to  vote  against  it,  if  elected. 

In  Middlesex,  one  who  had  voted  for  the  law  was  elected.  One  for  it, 
and  one  against  it,  rejected.  Of  the  three  having  the  highest  vole,  two 
were  against  the  law  and  one  for  it. 

Hampshire  was  equally  divided,  one  for  the  law  and  one  against  it. 
But  Mr.  Clark,  who  had  voted  against  the  law,  had  275  more  votes  on  the 
same  ticket,  than  Mr.  Lawrence,  a  champion  of  the  law,  and  President 
of  the  Senate. 


Berkshire,  Essex,  Plymouth,  Barnstable,  and  Nantucket,  re-eiected  sup- 
porters of  the  law. 

The  popular  will,  as  shown  in  the  canvass  for  Senators,  gave  the  prefer- 
<ence  to  candidates  divided  on  this  question,  as  follows : — ■ 

Against  ike  Law.  For  the  Lais 

Suffolk,  Q        ..........        ^ 

Middlesex,  3        --•-»-.>...,        2 

"Worcester,  6----»--        =         .-0 

Essex,  Q.-.......^§ 

Hampshire,  1^-..        .......        \ 

franklin,  1 

Hampden,  8                                             » 

Berkshire,  .-...        =         ----2 

Norfolk,  2       -..-...  1 

Plymouth,  --••.......        <2 

Bristol,  2--.         .......         ^ 

Barnstable,  ......        ^        ....        %_ 

Nantucket,  .........        .        .        % 

23  17 

In  the  House,  but  a  very  small  portion  of  those  who  voted  for  the  law 
were  sustained  by  the  people  in  1839; — not  one  in  three,  as  is  seen  by  the 
following  table. 


Number  of  members  in  the  several  Counties ,  who  voted  on  the  Law  o/"1838s 

and  were  re-elected  in  1839. 

Yeas 

Re-elected      1          JNavs           1      He-elected 

in  1838. 

in  1839.                in  1838.                in  1839. 

■Suffolk, 

36 

3 

28 

5 

35ssex, 

36 

17 

7 

3 

Middlesex, 

30 

4 

38 

9 

Worcester, 

30 

4 

22 

11 

Hampshire 

15 

6 

2 

1 

Hampden, 

8 

0 

6 

0 

Franklin, 

8 

2 

8 

5 

Berkskirej 

S 

1 

5 

1 

Norfolk, 

ID 

10 

7 

4 

Bristol, 

19 

8 

3 

1 

Plymouth, 

20 

30 

0 

0 

Barnstable, 

18 

30 

0 

0 

Dukes  &  Nantucket, 

5 

2            1 

0 

0 

229                        77                      106                 .       33 

This  unusual  change  in  the  members  has  taken  place,  so  that  although 
ihe  great  object  of  the  supporters  of  the  law  was  to  prevent  its  repeal  in 
1839,  they  have  nevertheless  returned  but  srvcvty-seven  of  the  original 
advocates  of  the  law  ;  thus  clearly  indicating  that  the  unpopularity  of  that 
measure  has  obliged  the  friends  of  the  law  to  take  new  candidates,  whs 
were  not  known  to  be  pledged  to  uphold  the  law. 

Neither  was  there  a  full  expression  of  the  representatives  in  passing  the 
law  at  the  close  of  the  session  of  183S.  It  was  in  fact  passed  by  a  minority 
of  the  House,  and  was  almost  the  last  Act  of  the  session.  The  whole 
number  of  members  belonging  to  the  House,  in  1838,  was  478,  requiring 
240  for  a  majority.  But  229  voted  for  the  law,  which  is  eleven  less  thaE 
a  majority.     It  was  therefore  passed  by  a  minority  of  the  House! 

Of  the  whole  number  of  members  in  the  respective  Counties,  there  were 
wanting  majorities  for  the  law,  viz. — in  Suffolk,  25  less  than  a  majority? 
Worcester,   9;   Hampden,  8;   Franklin,  4;    Berkshire,  19;   Bristol,  .2, 


42 

Total,  67.  The  Counties  where  majorities  of  the  members  voted  for  the 
law,  were,  Essex,  13;  Middlesex,  2;  Hampshire,  9;  Norfolk,  5;  Ply- 
mouth, 7;  Barnstable,  12;  Dukes  and  Nantucket,  1.     Total,  49. 

The.  opponents  of  this  law,  therefore,  show  conclusively,  that  there  has 
not  been  a  fair  and  full  expression  of  the  public  sentiment  upon  it  ;  and 
that  the  elections  for  1839,  indicate  a  decisive  expression  against  the  law, 
calling  for  a  modification  o/  repeal  of  it  at  the  present  session. 

Conclusion. 

What  then  have  the  people  a  right  to  expect,  and  what  can  be  done  to 
settle  this  unhappy  conflict  in  a  question  of  public  morals  and  private 
right?  The  answer  of  the  opponents  of  this  law,  (who,  though  they  may 
fail  now,  never  will,  and  never  can  cease  to  oppose  it3  arbitrary  and  unjust 
principles,)  is  **.  regulate,  but  not  prohibit,"  Apply  your  laws  to  places 
and  police,  not  to  property  or  its  uses, — to  offences,  not  to  innocent  acts  ; 
and  leave  the  rest  to  moral  and  social  influences.  Do  not  attempt  to  single 
out  and  separate  classes  of  men  according  to  their  property,  who  may 
indulge  on  one  side  of  the  line,  and  who  are  to  be  restrained  on  the  other; 
nor  to  prescribe  the  quantity  these  two  classes  may  or  may  not  purchase 
at  a  time. 

All  history,  all  experience,  and  all  the  attributes  of  human  nature,  are 
against  the  success  of  such  a  law. 

Your  law  professes  to  aim  to  stop  poor  men's  appetites  by  stopping  sales 
in  small  quantities.     How  futile  ! 

You  leave  the  habits  and  the  wants  of  society,  which  demand  and  will 
have  this  indulgence  while  the  article  is  to  be  found.  They  will  seek  it 
the  more  eagerly  the  more  your  law  attempts  to  restrict  it.  You  leave  the 
customers,  and  think  to  stop  the  sale,  while  you  increase  the  demand  by 
the  reaction  against  your  law. 

You  leave  the  free  importation  of  ardent  spirit, — you  leave  its  manu- 
facture,— you  leave  its  unrestrained  sale  over  fifteen  gallons, — you  leave 
wine,  in  all  its  gradations,  unrestricted  in  any  quantity,  and  by  any  one 
who  chooses  to  expose  it  to  sale  ; — and  yet  you  expect  such  a  law  will 
put  an  end  to  tippling,  and  compel  the  poorer  classes  to  resort  to  total 
abstinence! 

Be  sure  of  it,  the  end  of  this  law,  if  it  be  unwisely  persisted  in,  will  show 
the  folly  of  such  an  estimate  of  human  nature. 

We  have  history  for  it,  and  history  is  philosophy  teaching  by  example. 
I  pray  your  attention  to  the  following  extract  from  a  highly  authentic 
work,  (McCulloch's  Encyclopedia.,  page  1073,)  shewing  the  effects  of  just 
such  laws  as  this,  designed  to  be  prohibitory,  which  the  ultra  friends  of 
temperance  attempted  to  enforce  in  1742,  with  the  same  mistaken  zeal  that 
influences  the  ultra  friends  of  Temperance,  in  1839.  Let  them  not  rely 
on  the  supposed  difference  in  public  sentiment  now  and  an  hundred  years 
ago.  If  men  love  temperance  more  than  they  did  then,  so  do  "they  love 
liberty  and  hate  arbitrary  laws  more.  They  can  be  more  easily  persuaded 
now,  but  cannot  be  so  easily  driven,  as  in  ,1742. 

[Extract  from  McCuUock,  p.  1073.] 
"  During  the  latter  part  of  the  reign  of  George  I.,  and  the  earlier  part  of  that  of 
George  11.,  gin  drinking  was  exceedingly  prevalent;  and  the  cheapness  of  ardent 
spirits,  and  trie  multiplication  of  public  houses,  were  denounced  from  "the  pulpit,  and 
in  the  presentments  of  grand  juries;  as  pregnant  with  the  most  destructive  conse- 
quences to  the  health  and  morals  of  the  community,  At  length,  ministers  determined 
to  make  a  vigorous  effort  to  put  a  stop  to  the  further  use  of  spirituous  liquors,  except 
p.s  a.  cordial  or  medicine.  For  this  purpose,  an  act  was  passed  in  1736,  the  history  and 
effects  of  which  deserve  to  be  studied  by  all  who  are  clamorous  for  an  increase  of  the 
duties  on  spirits.     Its  preamble  is  to  this  effect  :— '  \Vhe1ea3,  the  drinking  of  spirituous 


liquors,  or  strong  water,  is  become  very  common,  especially  among  people  of  lower 
and  inferior  rank,  the  constant  and  excessive  use  of  which  lends  greatly  to  the  destruc- 
tion of  their  health,  rendering  them  unfit  for  useful  labor  and  business,  debauching 
their  morals,  and  inciting  them  to  perpetrate  all  vices;  and  the  ill  consequences  of  the 
excessive  use  of  such  liquors  are  not  confined  to  the  present  generation,  but  extend  to 
future  ages,  and  tend  to  the  destruction  and  ruin  of  this  kingdom.'  The  enactments 
were  such  as  might  be  expected  to  follow  a  preamble  of  this  sort.  They  were  not 
intended  to  repress  the  vice  of  gin-drinking,  but  to  root  it  out  altogether.  To  accom- 
plish this,  a  duty  of  twenty  ehilLingS  a  gallon  was  laid  on  spirits,  exclusive  of  a  heavy 
license  duty  on  retailers.  Extraordinary  encouragements  were  at  the  same  time  held 
out  to  informers,  and  a  fine  of  £100  was  ordered  to  be  rigorously  exacted  from  those 
who,  were  it  even  through  inadvertency,  should  vend  the  smallest  quantity  of  spirits 
which  had  not  paid  the  full  duty.  Here  was  an  act  which  might,  one  would  think, 
have  satisfied  the  bitterest  enemy  of  gin.  But  instead  of  the  anticipated  effects,  it 
produced  those  directly  opposite.  The  respectable  dealers  withdrew  from  a  trade  pro- 
scribed by  the  legislature ;  so  that  the  spirit  business  fell  almostentirely  into  the  hands 
of  the  lowest  and  most  profligate  characters,  who,  as  they  had  nothing  to  lose,  were 
not  deterred  by  penalties  from  breaking  through  all  its  provisions.  The  populace 
having  in  this,  as  in  all  similar  cases,  espoused  the  cause  of  the  smugglers  and  unli- 
censed dealers,  the  officers  of  the  revenue  were  openly  assaulted  in  the  streets  of 
London  and  other  great  towns;  informers  were  hunted  down  Jike  wild  beasts;  and 
drunkenness,  disorders,  and  crimes,  increased  with  a  frightful  rapidity.  'Within  two 
years  of  the  passing  of  the  act,'  says  Tindal,  'it  had  become  odious  and  contemptible, 
and  policy,  as  \j?ell  as  humanity,  forced  the  commissioners  of  excise  to  mitigate  its 
penalties.' — (Continuation  of  Rnpin,  vol.  viii.  p.  358,  ed.  1759.)  The  same  historian 
mentions,  (vol.  viii.,  p.  300,)  that  during  the  two  years  in  question,  no  fewer  than 
twelve  thousand  persons  were  convicted  of  offences  connected  with  the  sale  of  spirits. 
But  no  exertions  on  the  part  of  the  revenue  officers  and  magistrates,  could  stem  the 
torrent  of  smuggling  According  to  a  statement  made  by  the  Earl  of  Cholrnondeley, 
in  the  House  of  Lords — (Timber land's  Debates  in  the  House  of  Lords,  vol.  viii.  p.  338,) 
it  appears  that,  at  the  very  moment  when  the  sale  of  spirits  was  declared  to  be  illegal, 
and  every  possible  exertion  made  to  suppress  it,  upwards  of  seven  millions  of  gallons 
were  annually  consumed  in  London,  and  other  parts  immediately  adjacent!  Under 
such  circumstances,  government  had  but  one  course  to  follow — to  give  up  the  unequal 
struggle.  In  1742,  the  high  prohibitory  duties  were  accordingly  repealed,  and  such 
moderate  duties  imposed  as  were  calculated  to  increase  the  revenue  by  increasing 
the  consumption  of  legally  distilled  spirits.  The  bill  for  this  purpose  was  vehemently 
opposed  in  the  House  of  Lords  by  most  of  the  bishops,  and  many  other  peers,  who 
exhausted  all  their  rhetoric  in  depicting  the  mischievous  consequences  that  would 
result  from  a  toleration  of  the  practice  of  gin  drinking.  To  these  declamations  it  was 
unanswerably  replied,  that  whatever  the  evils  of  the  practice  might  be,  it  was  impos- 
sible to  repress  them  by  prohibitory  enactments;  and  that  the  attempts  to  do  so  had 
been  productive  of  far  more  mischief  than  had  ever  resulted,  or  could  be  expected  to 
result,  from  the  greatest  abuse  of  spirits.  The  consequences  of  the  change  were  highly 
beneficial.  An  instant  stop  was  put  to  smuggling;  and  if  the  vice  of  drunkenness 
was  not  materially  diminished,  it  Las  never  been  stated  that  it  was  increased." 

These,  Mr.  Chairman,  are  the  views  of  the  great  body  of  your  fellow 
citizens  who  ask  for  the  repeal  of  this  law.  Their  stake  in  society,  in 
property,  in  good  government,  in  pure  morals,  in  virtuous  habits,  in  the 
education  and  welfare  of  their  children,  is  as  great  as  that  of  the  supporters 
of  this  law;  and  they  claim  to  be  as  good  citizens  and  as  philanthropic  as 
they  are.  Depend  upon  it,  that  if  the  zealous  support  of  this  law  is  to  be 
made  the  test  of  true  philanthropy  and  of  good  morals,  it  will  ultimately  be 
found  that  the  most  energetic,  industrious,  intelligent  and  honorable,  of  the 
people  of  Massachusetts,  must  be  ranked  as  bad  citizens.  They  will 
never  approve,  though  they  may  not  openly  oppose,  such  legislation. 

No,  Sir.  The  opponents  of  this  law  are  among  the  best,  and  most 
virtuous  and  liberal,  of  your  citizens.  They  are  the  rational  friends  of 
temperance;  but  they  are  the  friends  of  liberty  and  enlightened  laws,  as 
well  as  the  friends  of  temperance.  They  say  to  you,  as  the  agents  of  the 
people,  commissioned  by  them  t<i  make  only  reasonable,  wholesome,  just 
and  rquitablr  laws; — "  repeal  this  law,  which  is  founded  on  a  false  prin- 
ciple in  legislation,  and  adopt  oihci'  means  to  aid  the  moral  reforms  of 
the  day." 


44 

THiey  say  to  vou ; — "  Punish  crime  wherever  you  find  it.     Preserve 

^eace  and  good  order  in  all, private  and  public  places,  so  far  as  the  com- 
munity is  concerned.  Regulate  trades  and  occupations,  and  the  places  itt 
which  they  are  carried  on,  within  the  limits  of  the  constitution,  for  the 
public  good.  Break  up  all  disorderly  houses,  all  lawless  disturbances  of 
good  neighborhoods  ;  prohibit  and  punish  drunkenness,  gambling,,  lottery 
dealing  and  lewdness,  because  in  themselves  crimes,  and  because  no  su- 
premelawof  the  land  authorizes  their  importation  into  the  State,  and  mix- 
ing up  with  the  mass  of  property.  But  do  not  deny  to  lawful  property 
its  essential  quality  of  value,  sale  ;  or  punish  an  innocent  man  to  prevent 
©thers  being  guilty," 

••  Beyond  these  limits  you  cannot  go,  to  enforce  by  law,  any  moral 
reform,  however  noble,  however  desirable.  Resort,  as  all  moral  reformers 
who  were  not  persecutors  and  bigots,  always  have  done,  to  reason  and 
argument,  the  still  small  voice  of  moral  suasion,  and  not  apply  the  terror 
of  the  law,  to  restrain  poor  men's  appetites.  Take  away  the  customers 
of  the  dealer  by  persuasion  and  example,  and  you  will  then  have  no  occa- 
sion to  resort  to  pains  and  penalties  against  a  lawful  occupation,  or  to 
Brand  as  criminals  upright  citizens. 

Mr.  Chairman,  and  gentlemen  of  the  committee  :  I  have  now  discharged! 
my  duty  to  the  memorialists,  in  opening  the  grounds  of  their  objections  to* 
this  law.  They  will  have  the  aid  of  abler  counsel  in  its  close ;  but,  what- 
ever may  be  held  to  be  the  extent  of  professional  latitude  in,  arguing  a* 
sause  for,  a  client,  I  desire  to  be  distinctly  understood,  that  in  a  great 
qpesiion  like  this,  affecting  public  morals-  and  fundamental  principles  of 
freedom,  I  would  not  appear  as  the  advocate  for  the  side  my  judgment  and 
conscience  did  not  both  deliberately  approve. 

I  stand  here,  not  less  the  friend  of  temperance,  because  I  am  the  friend 
®f  liberty.  In  this  law  I  see  not  only  a  blow  aimed  at  liberty,  but  at  the 
cause  of  temperance,  and  in  defence  of  that  cause,  in  its  original  purity 
and  purpose,  I  claim  a  right  to  speak  ;  a  right,  older  by  many  years,  thai* 
that  of  the  most  relentless  clamorers  for  this  law,  who  affect  to  denounce 
all  who  oppose  it,  as  the  enemies  of  temperance. 

Here  is  a  record,  Mr.  Chairman,  beginning  in  April,  1827,  prepared  by 
ime,  as  Secretary  of  a  meeting,  held  to  form  a  total  abstinence  society^, 
which  was  persevered  in  until  the  following  entry  was  made  :■ — 

«  March  11,  1823.— The  Secretary  appeared  at  the  Vestry,  but  finding  only  one- 
person  and  the  Sexton  present,  retired.,  there  not  being  a  quorum  to  adjourn  thft 
meeting." 

Two  years  after  this,  and  by  the  perseverance  of  the  same  individual, 
with  two  others,  a  numerous  society  of  over  five  hundred  members,  was- 
formed  ;  and,  in  looking  at  the  first  printed  quarterly  report  of  that  societyr 
made  by  myself,  in  1S30,  I  find  the  same  sentiments  I  advocate  now,  io> 
these  words  :•. — 

"  All  this  moral  influence  has  been  put  into  operation,  within  four  years  past. 
There  has  been  no  forcing  system,  and  there  can  be  ao  appeal  to  selrlsh,  sordid3  or 
ambitious  motives." 

"We  would  enforce  no  man's  conscience  beyond  its  own  honest  promptings.  Wac 
judge  no  man,  we  condemn  none;  nor  would- we,  if  we  could,  take  one  particle  from. 
Ehe  respectability  or  usefulness  of  any  citizen  who  indulges  in  an  habitual,  temperate- 
•use  of  ardent  spirits.  In  all  other  relations  except  the  moral  influence  he  might  exert 
In- the  cause  of  temperance,  by  example  as  well  as  precept,  he  may,  perhaps,  hold  at 
Higher  place  in  the  estimation  of  the  virtuous  and.  intelligent,  than  any  member  of  a 
temperance  society.  But.  in  that  relation,  can  he  exert  the  healthful  influence  that,, 
ss  a  moral,  an  enlightened,  and  above  ail,  a  Christian  member  o£  society,  he  ought  to> 
ss-epcise  ?' 


45 

**The  strength  of  Temperance  Associations  will  go  on  increasing  so  long  as  tfwi 
friends  of  Temperance  constitute,  as  they  now  do,  solely  a  moral  party ;  but  the  mo- 
ment these  associations  shall  (urn  aside  from  their  legitimate  purpose,  to  mingle  in  party 
strife,  whether  in  politics  or  religion,  that  moment,  bo  they  ever  so  strong,  they  wife 
become  shorn  of  their  strength,  and  will  fall  an  easy  prey  to  the  Philistines  Persua- 
sion, and  not  coercion,  example  and  not  dictation,  are  the  legitimate  weapons  of  our 
moral  warfare."' — [1st  Quarterly  Report,  July  1830,  of  the  Providence  Association  for 
the  Promotion  of  Temperance.]. 

Such  was  my  temperance  faith  then,  such  is  it  now,  and  from  that  day 
I  have  not  ceased  to  show  my  faith  in  practical  total  abstinence,  and  iu 
moral  suasion,  by  my  works. 

Pardon  me  for  this  allusion  to  my  personal  relations  to  this  cause,  but 
the  unworthy  attempt  made  to  identify  opposition  to  this  law  with  opposi- 
tion to  temperance,  may  seem  to  justify  it- 
Here  then  I  leave  the  cause  of  the  memorialists.  It  has  been  patiently 
heard  thus  far;  let  it  be  fairly  judged.  The  Executive  who  signed  this- 
taw,  now  intimates  strongly  in  his  address  to  both  Houses,  doubts  of  its 
expediency  or  practicability.  He  invites  them  to  a  calm  and  dispassionate 
consideration  of  the  whole  subject.  The  memorialists  earnestly  desire  th& 
same  -t  and  if  this  matter,  (aside  from  the  pride  of  opinion,  which  often? 
misleads  men  to  persist  in  error  rather  than  confess  wrong,)  can  command 
the  ealin,  dispassionate,  and  deliberate  action  of  the  Legislature,  there 
irjust  be  but  one  answer  to  the  prayer  of  the  memorialists  I  "  It  ought  to- 
fee  granted  V 

TESTIMONY  INTRODUCED  BY  THE  MEMORIALISTS. 

Jan.  29, 1339. — Samuel  A.  Eliot,  Mayor  of  the  city  of  Boston,  being  sworn,  an*? 
questioned,  testified: — 

»  That  he  had  examined  the  law,  and  thought  it  would  be  extremely  difficult  to 
enforce  it  to  any  extent,  in  the  city.  In  the  position  he  occupied,  as  the  head  of  the- 
police,  he  had  never  allowed  himselF  to  doubt  the  practicability  of  enforcing  any  law; 
but  this  was  different  from  any  that  had  come  under  his  observation.  It  would  require- 
unusual  energy  and  even  physical  force,  through  a  very  great  addition  to  the  police, 
to  cause  it  to  be  carried  into  strict  execution.  He  could  not  undertake  to  do  it,  wilh 
the  present  disposable  means  of  the  police.  He  had  had  much  practical  aeqnaintanes 
with  the  subject,  and  was  fully  satisfied,  and  thought  the  opinion  -would  ultimately 
become  general,  that  regulation  promotes  temperance,  and  prohibition  increases  intent,- 
perance.  A  law  of  regulation  could  be  enforced,  but  not  of  prohibition,  to  the  extent 
this  proposed. 

In  answer  to  an  inquiry  as  to  the  effect  of  the  recent  attempt  to  intro- 
duce stronger  laws  against  the  sale  of  ardent  spirits,  the  Mayor  stated,  that 

"During  the  past  year,  according  to  the  reports  of  the  night  watch,  it  appeared  that 
there  had  been  an  increase  of  the  number  of  persons  detained  for  drunkenness  during 
the  nicrht.  This  could  be  only  partially  accounted  for  from  the  fact  that  there  had  also 
been  an  increase  in  the  number  of  the  night  police.  He  could  attribute  it  to  no  par- 
ticular cause.     The  population  of  the  city  had  increased  but  little  in  that  time."' 

u  The  trials  at  the' Police  Court,  for  drunkenness,  had  gradually  increased  for  some 
years.  In  1835  the  number  of  cases  tried  was  317,  at  an  expense  of  $1499.  In  1836r 
367  cases,  at  $1724.  In  1837,  444  cases,  at  $2,686.  In  1838,  076  cases,  at  $3,177. 
He.  believed  that  the  system  of  granting  licences  for  the  sale  of  spirituous  liquors,  in, 
this  city,  iu  the  present  state  of  society,  had  a  greater  tendency  to  check  the  evils  of 
intemperance  than  the  prohibition  of  the  sale  of  spirituous  liquors." 

"There  were  certain  rules  which  regulated  the  Board  of  Alderman  in  granting: 
licences.  The  number  of  licences  granted  since  1830,  was  as  follows  : — in  183U,  5(!0j 
iu  1831,  690;  in  1832,  410;  in  1833,  492  ;  in  1834,  394;  in  1835,  300;  in  1836,  385; 
in  1837,  360  ;  in  1838,  408." 

"A  large  proportion,  more  than  half  of  the  commitments  by  the  night  watch,  had 
been  for  intemperance — which  was  also  a  frequent  cause  of  disorder  and  disturbance." 

"  He  thought  it  would  be  extremely  difficult,  if  not  impossible,  to  discriminate 
between  the  sale  of  wine  by  the  glass,  and  other  kinds  of  spirituous  liquors.  A  per- 
mission to  sail  wines,  would  doubtless  be  used  with  impunity  to  sell  other  liquors." 


48 

"  The™  would  probably  be  great  opposition  to  the  law  from  thope  who  were  accus- 
tomed to  sell  spirits,  arid  tii;>s«  who  were  accustomed  to  buy  it — although,  doubtless  a 
lar^o  proportion  of  the  sellers  would  support  the  law  if  it  should  not  be  repealed — or 
any  other  which  might  be  enacted." 

'"'  He  believed  that  an  intemperate  man  would  be  likely  to  drink  oftener,  and  a  tem- 
perate man  to  indulge  more,  in  consequence  of  the  passage  of  this  law  prohibiting  the 
sale  of  spirituous  liquors." 

"  In  his  opinion,  the  granting  of  licences  had  a  tendency  to  prevent  violations  by 
the  unlicensed  persons." 

On  the  cross  examination  by  Messrs.-  Crosby,  Bolles,  Sprague,  and 
others,  who  appeared  in  support  of  the  law,  the  following  facts  were 
illicited  : — 

"  Has  the  granting  of  licenses  a  tendency  to  increase  or  diminish  drinking?" 

"Undoubtedly  the  granting  of  licenses  would  check  intemperance." 

"  What  portion  of  the  prosecutions  has  resulted  in  convictions  i" 

"  It  is  impossible  for  me  to  tell;   probably  most  of  thein." 

"  What  fact  have  you  to  show  that  the  license  law  has  increased  intemperance?" 

"  I  know  of  no  fact  to  illustrate  it,  except  from  what  has  come  to  my  knowledge. 
I  know  it  to  be  so." 

"  What  proportion  of  committals  to  the  watch-house  are  for  drunkenness  ?" 

"  I  do  not  know.     A  large  proportion.     More  than  half." 

"  You  say  that  since  1834,  the  number  of  drunkards  has  increased.  Has  there  been 
a  corresponding  increase  of  other  offences,  such  as  theft,  &.c.  ?" 

"  1  do  not  know  positively,  but  believe  not." 

"  Hovy  great  an  increase  of  the  police  would  it  take  to  enforce  the  new  law  ?" 

"  I  think  it  would  take  every  bayonet  in  the  city  to  enforce  it." 

"  Would  licensing  houses  of  ill  fame  decrease  that  vice  ?" 

"  1  cannot  say.  The  popularity  of  the  vice  is  not  the  same.  One  is  an  acquired 
fopensity.     The  other  not." 

"Do  you  mean  to  say  that  the  whole  military  force  of  the  city  would  be  requisite  to 
tftforce  the  license  law?" 

"  The  attempt  to  enforce  it  would  be  so  hazardous  that  it  is  impossible  to  say  what 
s-neans  would  be  necessary  to  preserve  order." 

"  You  say  that  intemperance  has  increased  during  the  last  year,  in  consequence 
af  the  law.  Do  you  mean  that  the  drunkard  gets  drunk  oftener,  or  other  people  drink 
more  in  anticipation  of  the  enforcement  of  the  law?" 

"  I  believe  both." 

[We  regret  that  owing  to  the  noise  and  confusion  of  persons  constantly 
coming  in  and  going  out  of  the  hall,  and  the  low  tone  of  voice  in  which 
the  questions  were  put  and  answered,  we  were  unable  to  hear  a  large  por- 
tion of  the  testimony.  What  we  did  hear  of  Mr.  Eliot's  answers  appeared 
to  be  very  prompt,  very  much  to  the  point,  very  appropriate,  very  apt,  and 
he  did  not  seem  at  all  disconcerted  by  the  severe  cross  questioning  which 
he  underwent.] 

THE  MAYOR'S  LETTER  TO  MR.  DEXTER. 

City  Hall,  Jan.  30,  1839. 

My  Dear  Sir, — 

It  is  stated  in  one  of  the  papers,  this  morning,  that  I  was  ex- 
amined as  to  the  probable  effect  of  the  law  of  the  last  session,  respecting  licensing. 
i  do  not  recollect  that  any  direct  question  of  that  kind  was  put  to  me,  and  I  avail 
myself  of  a  few  moments  leisure  to  state  to  you  what,  in  my  opinion,  will  be  its  effect, 
if  it  be  persevered  in  by  the  Legislature.  Some  three  thousand  or  four  thousand  male 
adults,  legal  voters,  in  this  city,  will  find  themselves  suddenly  cut  off  from  their 
iccustomed  means  of  indulgence  of  established  habits — some,  of  the  temperate,  and 
some,  of  the  intemperate  use  of  ardent  spirits.  Of  these,  a  large  proportion  will  be 
entirely  deprived,  by  want  of  means,  from  the  power  of  obtaining  any  of  their  usual 
beverage,  except  by  some  evasion  of  the  law,  or  open  disregard  of  it,  or  by  the  very 
bad  expedient  of  clubbing  together  to  purchase  fifteen  gallons,  and  then  dividing  it. 
Besides  these,  a  large  number  of  dealers  would  lose  their  customers;  and  it  cannot  be 
supposed  that  all  these  persons  will  submit  quietly  to  what  they  regard  as  an  infringe- 
ment of  their  rights.  Open  violations  of  the  law,  and  secret  evasions  of  it,  will  take 
place ;  and  \kt*  enforcement  of  it  can  but  set  one  portion  of  the  population  against 


47 

another,  and  produce  a  scene  of  confusion  and  tumult  unparalleled.     Jn  all  this  the** 
is  not  the  least  progress  of  temperance. 

I  was  asked  yesterday  if  great  good  would  not  ensue  from  the  law  ?  I  answered — 
none  which  may  not  be  produced  by  other  means,  without  the  agitation  which  is  cer- 
tain to  be  the  effect  of  this.  The  temperance  party  seem  to  think  this  law  is  the  only 
means  of  doing  good  in  the  cause.  They  regard  it  as  a  father  does  a  pet  child— a 
paragon  of  perfection,  which  it  never  was.  Other  laws  may  be  devised,  in  my  opinion, 
much  more  effectual;  and  a  great  objection  I  have  to  the  law,  is  the  probable  opposite 
tendency  of  it,  viz. — to  intemperance.  Restrain, — make  it  difficult  for  the  men  1  have 
spoken  of  ahove,  to  indulge  themselves  to  excess,  but  not  impossible.  Leave  them  to 
their  own  free  moral  agency — put  down  the  limit  from  fifteen  gallons  to  a  quart,  or  a 
pint,  so  that  the  poorest  man  may  get  intoxicated  if  he  chooses  ;  and  then  close  the 
dram  shops,  i.  e.  say  that  none  shall  be  mixed  or  drunk  on  the  premises  of  the  seller, 
(excepting  taverners,)  and  I  would  guarantee,  for  a  small  premium,  a  great  progress 
to  the  temperance  cause,  in  a  short  time. 

In  answer  to  the  question  asked  me  yesterday,  as  to  the  facts  on  which  rr.y  opinion 
was  based,  that  licensing  hnd  a  tendency  to  check  intemperance,  1  ought  to  have  said, 
in  addition  to  the  increase  of  intemperance  in  the  city,  that  statements,  which  I  be- 
lieve to  be  true,  have  been  often  made  to  mo  of  the  increase  of  the  sale  of  ardent  spirits 
by  wholesale  dealers,  the  Inst  year,— especially  to  those  markets  where  prohibition  hag 
taken  the  place  of  regulatioji.  I  do  not  know  whether  this  is  evidence,  but  I  wag 
asked  the  grounds  of  my  opinion,  and  had  I  been  sufficiently  collected,  should  hava 
answered  in  this  way. 

I  observed  an  attempt  to  make  it  appear  that  the  increased  vigilance  and  activity 
of  a  temperance  man  as  City  Marshal,  had  revealed  all  the  increased  number  of  casea 
of  drunkenness.  But  he  has  nothing  to  do  with  those  cases--  they  are  reported  and 
complained  of  by  the  police  officers  and  the  watch,  fie,  by  the  way,  is  as  much  op- 
posed to  the  late  law  asT._aro. 

]  put  this  note  into  yo'ur  harm's  to  make  use  of  as  you  deem  expedient.  If  you  think 
proper  to  call  on  me  to  make  such  statements  to  the  committee,  viva  voce,  1  am  ready-; 
but  as  I  have  three  other  legislative  committees  to  wait  upon  at  thi>;  time,  I  should 
rather  be  excused,  if  this  may  be  received  instead.  I  write  as  I  should  speak,  unde* 
the  responsibility  of  my  oalh.  Yours  very  truly, 

SAMUEL  A.  ELIOT. 
To  Frakklin  Dexter,  Esq. 

Jan.  31,  1839.— E.  J.  Baker,  of  Milton,  Norfolk  County.  In  this  CYmniv  nv 
licenses  have  been  granted  by  the  County  Commissioners,  since  1835.  The  proaibjUwx 
has  increased  the  sale  in  many  places.  Previous  to  1835,  there  were  about  ten  Ik&aStgr 
in  Milton,  and  the  places  generally  well  regulated.  There  are  now  six  or  ei*S? 
places  where  spirits  are  sold.  The  better  class  get  it  at  particular  houses.  Others  gsa 
it  in  cellars  and  secret  places,  and  at  Irish  houses.  So  long  as  licenses  existed,  tt-i 
sale  was  confined  to  licensed  places.  The  sale  has  increased,  and  drunkenness  uatt 
increased,  within  the  past  year.  Has  not  seen  so  much  drunkenness  for  six  years,  t.j 
in  the  past  year.  The  law  was  evaded,  and  the  Sunday  law  had  mil  ueen  enforced. 
It  was  openly  violated  in  many  places.  He  called  at  a  tavern  the  other  day  U>t 
whiskey  punch,  and  was  told  he  could  have  wine  punch, — but  the  wine  punch  was 
made  of  whiskey. 

The  name  of  the  taverner  was  demanded  by  the  counsel  for  the  remonstrants.  The 
witness  replied  that  he  would  gh'e  any  information  in  his  power,  to  aid  the  committee 
in  these  inquiries,  but  he  could  not  disclose  the  names  of  persons,  to  subject  them  to 
prosecution. 

After  a  discussion  by  the  counsel  on  both  sides,  Mr.  Senator  Walcot,  Chairman  of 
the  Committee,  without  taking  a  vote  in  the  Committee,  decided  that  the  name  must 
be  given.     Witness  declined,  and  the  Chairman  refused  to  hear  him  any  further. 

Josiah  Braolee,  of  Boston,  was  called,  and  Mr.  Hallett  proposed  that  the  form  of 
oath  be  to  make  true  answers  to  questions,  which  was  the  proper  Parliamentary  form. 
Mr.  Lincoln,  of  Worcester,  moved  that  the  usual  form  of  the  judicial  oath  be  adminis- 
tered, and  the  Committee  so  ordered. 

Mr.  Bradlee  testified  that  he  was  an  importer  of  spirituous  liquor.  Is  a  larwe  dealer 
in  brandy  and  gin,  and  imports  and  sells  as  much  as  he  ever  did.  His  general  sales 
are  probably  larger  than  ever.  The  demand  is  beyond  the  supply  in  the  market  at 
present,  particularly  for  brandy  People  were  very  dry.  A  cargo  of  brandy  was 
expected,  and  they  were  calling  for  the  article  earnestly.  The  whale  ships  from  New- 
Bedford,  do  not  carry  out  rum  now.  There  eould  not  be  any  considerable  quantity 
taken  out  of  New-Bedford  in  that  way.  If  sent  there,  it  must  be  consumed  in  some 
other  way.  He  had  for  many  years  supplied  orders  for  the  whale  ships.  Formerly 
they  carried  out  spirits,  but  now  it  was  voluntarily  discontinued,  without  any  law 
{eq«jiring  it.     He  had  had  only  two  orders  for  rum  for  whale  ships,  in  &even  years. 


From  Iris  observation  about  the  wharves,  lie  believed  there  waa  £.s  mwc'h  eptrrtaose 
liquor  shipped  to  New  Bedford  now,  as  there  ever  was.  Last  week  he  saw  seven  pipes 
of  brandy  put  on  board  a  vessel  for  New  Bedford.  From  all  he  saw,  he  was  satisfied 
that  there  was  no  diminution  in  the  quantity  of  spirits  sent  to  New  Bedford,  but  rather 
an  increase.  Saw  six  casks  yesterday  going  on  board  a  New  Bedfor.d  packet,  and  the 
Captain  said  he  had  thirty  barrels  of  spirits  besides,  then  on  board. 

On  cross  examination.  The  shipment  of  spirits  to  New  Bedford,  is  certainly 
greater  than  ever.  More  or  less  brandy,  gin,  rum,  Ac.  are  constantly  alongside  the 
New  Bedford  packets,  in  front  of  my  store.  Twenty  years  ago,  orders  were  universal 
for  ardent  spirits,  in  fitting  out  ships.  Now  they  are  entirely  out  of  use.  My  orders 
iiave  discontinued  entirely. 

Ezra  Wjgstok,  Jr.  City  Marshal  of  Boston. — Has  the  immediate  superintendence 
.of  the  police  department.  1  should  suppose  that  the  law  of  1838,  could  not  be  enforced 
in  the  present  state  of  society,  "it  would  require,  in  order  to  enforce  it  to  any  extent, 
means  entirely  different  from  the  ordinary  mode  of  enforcing  the  laws.  Cannot  say 
•what  number  of  extra  police,  but  it  must  be  very  large.  A  large  portion  of  the  dis- 
order in  the  city  arises  from  intemperance.  In  my  opinion,  this  law  will  not  diminish, 
fbut  rather  increase  this  evil.  I  do  not  think  it  will  decrease,  but  be  likely  to  increase., 
the  number  of  places  where  liquors  will  be  sold.  The  secresy  of  the  places  would  be 
jiksly  to  increase  vice.  The  secret  places  are  much  more  injurious  than  open  and 
licensed  ones.  These  last  are  under  the  eye  of  tiue  police.  The  former  it  would  be> 
•difficult  to  reach.  The  present  number  of  licensed  places  is  four  hundred.  Jf  no 
licenses  were  granted,  there  would  no  doubt  be  as  many  places  open,  and  as  many  to 
cell  without,  as  with  licenses.  Temperance  would  be  better  assisted  by  regulation 
lhan  by  prohibition,  unless  other  means  than  can  now  be  used,  are  resorted  to.  Have 
taken  an  interest  personally  in  the  subject  of  temperance.  From  my  own  observatioB 
am  satisfied  that  places  where  ardent  spirit  is  sold,  are  more  frequented  now  than 
■formerly.  Know  no  other  cause  for  this  than  the  effect  of  restraint  by  law.  My 
opinion  is,  that  many  drams  are  taken  because  those  who  drink  them  believe  they  are 
■asserting  a  public  and  private  right. 

On  cross  examination.  Most  of  the  cases  of  intemperance  that  fall  under  the  City 
police,  come  from  low  grog  shops — places  that  are  not  licensed.  But  very  few  of  the 
licensed  places  are  low.  Most  of  these  low  grog  shops  were  licensed  many  years  ago.; 
but  more  care  is  now  taken  As  to  the  enforcement  of  the  law  in  Boston,  it  would 
depend  mainly  on  the  sense  of  obligation  the  dealers  and  buyers  might  feel  to  obsarve 
sit.  The  nature  of  the  evidence  is  difficult  for  the  police  to  get  at,  and  the  mode  of 
:doing  it,  if  pressed,  would  be  unusual.  There  are  probably  three  hundred  tenements 
in  whvr.h  the  article  is  sold  without  license.  Believe  that  at  least  half,  say  two  hun- 
dred, of  those  now  licensed,  would  continue  to  sell  if  this  law  is  not  repealed. 

;[Rev.  Mr.  Cobb,  of  VValtham,  one  of  the  agents  of  some  of  the  Societies,  employed 
54o  appear  in  behalf  of  the  law,  here  proposed  a  very  long  and  elaborate  query  as  to  the 
iKoral  effect  ot  a  moral  law,  in  producing  moral  influences  favorable  to  the  observance 
<of  the  moral  law  ;  which  the  intelligent  and  very  correct  witness,  said  it  was  impos- 
sible for  him  to  comprehend.     The  examination  then  proceeded.] 

•Question,  by  Mr.  Upton,  of  the  Committee.  Which  would  do  the  most  injury.;  a 
public  respectable  place,  or  one  of  the  secret  low  ones  ?     Jlnsiccr.     Decidedly  the  latter. 

By  the  same.  What  would  be  the  effect  on  public  morals,  if  all  the  respectable 
dealers  should  be  stopped  by  this  law?  Answtr.  It  would  have  a  very  bad  effect 
upon  the  morals  of  this  city,  to  drive  the  business  out  of  respectable  hands,  because  it 
would  go  into  bad  ones,  and  be  productive  of  much  greater  evil  in  the  communitty. 
If  this  law  went  into  general  operation,  such  he  believed  would  be  the  effect  as  to  the 
respectable  and  intelligent  dealers.  Jf  all  licenses  were  denied,  the  sales  would  be  as 
great,  but  not  so  public,  and  not  so  likely  to  be  detected  where  the  law  is  violated. 
Much  the  larger  number  of  intemperates  taken  up  in  Boston,  are  foreigners,  but  resi- 
dents of  the  city.  Such  persons  would*  be  most  likely  to  find  supplies,  at  unlicensed 
places,  if  all  licenses  were  withdrawn. 

George  Pennijman. — Is  a  clerk  of  the  Granite  Rail-Way  Co.,  in  Milton,  six  or 
seven  miles  from  Boston.  Formerly  there  was  one  house  licensed  there.  The  traffic 
is  now  carried  on  clandestinely,  and  there  is  more  liquor  used,  than  when  it  was  sold 
openly.  An  Irishman  runs  a  wagon  to  Boston,  and  the  workmen  send  in  and  get 
supplies.  They  carry  it  home,  and  instead  of  drinking  occasionally,  as  before,  at  the 
public  houses,  they  drink  more,  privately.  If  I  wanted  liquor,  I  should  send  to  Boston 
for  it;  but  if  J  asked  an  Irishman  to  get  it,  and  promised  to  ask  no  questions,  he  would 
bring  it  to  me  in  two  minutes.  New  rum  sells  at  a  dollar  a  gallon, — worth  forty  cents 
in  Boston.  Drinking  has  increased  since  this  law,  and  there  is  more  drunkenness 
than  formerly  in  that  place  and  the  vicinity. 

The  Company  do  not  allow  liquor  on  the  works.  They  consider  it  for  their  interest 
to  exclude  it.  if  the  whole  country  were  to  adopt  prohibition,  it  would  work  w.ellf 
if  it  could  be  enforced. 

£a  answer  to  questions  by  Mr,  Upton.    Thwe  is  more  used  than  there  was  whfts: 


49 

there  was  a  public  licensed  store.  Thinks  the  reason  is,  because  the  laborers  now 
keep  it  in  their  houses,  and  it  is  a  shorter  way  to  a  man's  chest  or  closet,  than 
to  a  shop. 


Ftbruary  1,   1839. 

Moses  Williams  of  Boston,  of  the  firm  of  J.  D.  &  M.  Williams,  was 
offered  as  a  witness  to  show  the  amount  of  sales  made  to  counties  in  which 
all  licenses  have  been  denied. 

Before  taking  the  oath  he  wished  to  understand  the  views  of  the  Com- 
mittee as  to  one  question  that  might  be  put  to  him.  On  Tuesday  last,  he 
had  taken  from  the  books  of  ten  or  twelve  distillers  and  dealers  in  Boston, 
the  amount  of  sales  of  spirits  made  the  last  year,,  and  sent  to  neighboring 
Counties  where  there  are  no  licences.  He  was  one  of  those  dealers,  and 
they  were  all  ready  to  testify  to  the  correctness  of  the  statement,  respect- 
ively. He  had  supposed  that  the  Committee,  in  obtaining  statistical  facts, 
would  be  satisfied  with  the  oath  of  individuals  who  have  made  the  sales, 
without  requiring  the  names  of  their  customers.  From  what  occurred 
at  the  last  meeting,  it  would  appear  that  the  names  of  the  buyers  would  be 
required.  He  reserved  the  privilege,  in  his  business  transactions,  of  not 
publishing  the  names  of  his  customers,  without  their  consent,  unless  he 
was  compelled  to  do  so,  and  if  the  committee  did  not  wish  to  receive  his 
statement,  under  oath,  with  that  qualification,  he  did  not  feel  at  liberty  to 
make  it  voluntarily. 

Mr.  Stowell  of  New  Bedford  one  of  the  Committee,  objected  to 
receiving  any  statement,  unless  the  names  of  the  persons  it  was  sold  to 
were  given.  'If  79,000  gallons  had  been  sent  to  Bristol  County,  he  wanted 
to  know  who  had  got  it,  and  what  had  been  done  with  it.  If  he  believed 
it  had  gone  there,  he  should  be  in  favor  of  the  repeal  of  the  law. 

Mr.  Blake  of  Boston,  did  not  see  the  necessity  of  splitting  legal  hairs, 
in  a  general  inquiry  before  a  Committee  of  the  Legislature.  The  names 
could  not  be  material,  and  would  give  no  additional  information  on  which 
the  Committee  could  act.  The  facts  of  the  sale,  and  the  conveyance  to 
these  Counties,  were  the  prominent  points  of  the  inquiry. 

Mr.  Lincoln  of  Worcester,  insisted  on  the  names.  The  object  of  the 
inquiry  would  be,  a  cross  examination,  to  test  the  truth  of  the  statement  of 
the  witness,  and  follow  it  out  in  all  its  ramifications. 

Mr.  Brayton  of  Nantucket,  would  be  willing  to  adopt  the  rule  to  ask 
no  person  to  expose  the  name  where  it  would  subject  the  witness  to  a  crim- 
inal prosecution  ! 

The  Chairman  was  of  opinion  that  if  the  question  was  put  it  must  be 
answered,  and  after  a  discussion  by  Messrs  Sprague  and  Hallett,  for  and 
against,  the  Committee  decided  that  the  names  must  be  given. 

Mr.  Hallett  said  he  regretted  the  decision,  as  it  obliged  him  to  with- 
draw all  further  testimony  on  the  part  of  the  memorialists  who  would  now 
attend  the  hearing  as  spectators. 

The  Chairman  called  on  the  opposite  side  to  proceed,  but  not  expecting 
to  be  heard  at  this  sitting,  they  were  not  prepared,  and  the  Committee* 
adjourned. 

At  the  next  meeting  Mr  Dexter  appeared  with  Mr.  Hallett  for  the  Me- 
morials, and  urged  the  reconsideration  of  the  decision  respecting  the 
testimony,  but  the  Chairman  inflexibly  adhered  to  it.  It  was  su^t lined 
by  a  majority.  Mr.  Hallett  then  read  and  presented  the  following  state- 
ment : — 

7 


50 

PROTEST   PRESENTED  TO  THE  JOINT  COMMITTEE  0? 
THE  LEGISLATURE  ON  THEIR  RULE  EXCLUDING 

TESTIMONY. 

The  opening  Counsel  fur  the  Memorial  of  Harrison  Gray  Otis  and  others, 
respectfully  submits  the  following  to  the  Joint  Committee  of  the  Legisal- 
ture,  in  behalf  of  the  Committee  of  citizens  who  have  petitioned  for  the 
repeal  of  the  law  of  April  19..  1838.. 

The  citizens  who  have  appeared  before  the  Joint  Committee  of  the  Le- 
gislature, with  a  view  to  aid  their  inquiries  into  the  matter  committed  to 
Them  on  the  Memorial  of  Harrison  Gray  Otis  and  others,  and  the  remon- 
strances against  said  Memorial — viz:  whether  the  License  Law  of  April 
19,  1838,  ought  to  be  repealed  ;  would  respectfully  present  their  protest 
against  the  rule  adopted  by  the  Committee  relative  to  the  examination  of 
witnesses,  which  rule  has  unexpectedly  put  it  out  of  their  power  to  produce 
important  and  material  evidence  bearing  upon  the  question  of  the  inexpe- 
diency and  impracticability  of  that  law,  as  a  prohibatory  act  against  the 
sale  of  spiiituous  liquors. 

The  subject  referred  to  the  Committee  of  the  Legislature,  is  one  relating 
to  a  general  law,  and  not  a  private  act,  and  affects  all  the  citizens  of  the 
Commonwealth. 

The  Memoralists,  therefore,  do  not  appear  as  parties' to  the  issue,  nor  as 
representing  a  private  interest — but  voluntarily,  in  the  exercise  of  a  right 
common  to  all  and  secured  to  the  people,  viz.  "  to  give  iustructions  to  their 
representatives,  and  to  request  of  the  Legislative  body,  by  way  of  address, 
petitions  or  remonstrances,  redress  of  the  wrongs  done  them"  by  the  opeca,- 
tion  of  the  laws. 

They  also  appear  as  petitioners,  under  the  general  right  of  the  citizens, 
secured  by  the  Constitution,  to  require  of  their  law-givers  an  exact  and 
constant  observance  of  the  fundamental  principles  of  the  Constitution,  "  in 
the  formation  of  the  laws  necessary  for  the  good  administration  of  the 
Commonwealth."  Believing  this  Taw  to  he  wholly  unnecessary,  for  that 
purpose,  they  ask  for  the  revision  of  a  law,  which  thev  believe  the  Legisla- 
ture ought  to  revise  under  the  provision  that  requires  them  to  assemble 
frequently  "  for  the  redress  of  grievances,  for  correcting,  strengthening  and 
confirming  the  laws,  and  for  making  new  laws,  as  the  common  good  may 
require."  They  disclaim  therefore,  either  the  interest  or  the  liabilities  o£  a 
party  to  a  suit  or  to  a  private  petition. 

The  inquiry  before  the  Joint  Committee  is,  whether  the  law  of  April  19, 
1838,  is  "  necessary  for  the  good  administration  of  the  Commonwealth," 
and  whether  the  common  good  requires  that  law  to  be  repealed,,  and  a  new 
law  to  be  made. 

To  form  a  just  opinion  in  a  matter  where  the  operatiou  of  an  existing 
or  proposed  law  on  the  common  good  is  doubtful,  and  where  the  citizens  are 
nearly  equally  divided  as  to  the  beneficial  or  injurious  effects  of  such  law, 
the  Legislature  must,  to  a  great  extent,  rely  on  such  facts  as  can  be  laid 
before  them  ;  not  as  judicial  evidence,  bHt  as  means,  as  far  as  they  go,  of 
enabling  men  of  sound  judgment  to  arrive  at  correct  conclusions. 

For  this  purpose  alone,  we  conceive,  can  Legislative  Committees  inves- 
tigate facts  and  receive  testimony  or  statements  from  citizens  inrelation  to 
a  public  law  ;  because  the  Constitution  forbids  the  Legislature  from  "  ever 
exercising  the  Judicial  power."  They  cannot,  therefore,  exercise  the  pow- 
ers and  process,  or  be  restricted  to  mere  judicial  forms  of  Courts  of  law,  in 
receiving  testimony  ;  because  the  purpose  is  not  to  try  or  to  punish,  but  to 
ascertain  from  the  best  means  within  their  reach,  whether  an  existing  or 
proposed  law  is  "  necessary"  and   "for  the  common  good."     In  the  event 


ol 

then  of  being  unable  to  obtain  all  tho  facts  that  might  be  desirable  lo  arrive 
at  certain  results  beyond  all  possibility  of  doubt,  would  the  Legislature  en- 
tirely reject  such  information  and  such  facts  presented  to  them  as  might 
tend  to  aid  in  forming  some  opinion  of  the  effect  and  operation  of  a  law 
disapproved  by  a  large  portion  of  the  people,  as  unnecessary,  ineffectual 
and  unjust  ? 

An  intelligent  Committee  could  always  discriminate  as  to  the  value  and 
credibility  of  testimony  ;  and  if  a  witness  should  decline  answering  a  que.-.- 
tion,  on  ihe  ground  that  it  might  implicate  himself  or  others,  they  could 
never  be  at  a  loss  to  determine  how  much  it  ought  to  deduct  from  the 
weight  ol  his  whole  testimony.  They  may  exercise  a  dispensing  power,  so 
as  to  get  at  substantial  truth,  without  invading  private  relations  of  confi- 
dence. 

The  clear  distinction  bet-ween  Judicial  and  Legislative  testimony  wo 
.  conceive  to  be  this — Judicial  evidence  binds  those  who  are  to  act  upon  it. 
The  juror  is  sworn  to  give  his  verdict  according  to  the  evidence,  and  there- 
fore none  but  strictly  judicial  evidence  should  be  admitted. 

A  Legislative  committee  of  inquiry  as  to  a  public  law,  are  not  sworn  to 
decide  according  to  the  testimony,  nor  are  they  bound  to  regard  it  at  all  as 
controlling  their  own  judgment  and  convictions  of  right  and  expediency. 
The  evidence  is  only  another  form  of  argument  to  enable  them,  as  far  as 
practicable,  to  arrive  at  correct  conclusions,  and  they  have  full  pow<  r  to 
recommend  to  the  Legislature  to  make  or  unmake  a  public  law,  without 
any  evidence  at  all,  or  with  such  evidence  as  it  was  in  their  power  to  obtain. 

A  Judicial  tribunal  cannot  act  on  matters  of  fact,  unless  they  are  judici- 
ally proved,  nor  can  it  excuse  a  witness  fiom  answering  any  question  a 
party  has  a  legal  right  to  put.  A  Legislature  may  rightly  act  on  mere  sug- 
gestion, and  may  excuse*  witnesses  from  answering,  on  merely  personal  and 
confidential  relations. 

The  question,  then,  is,  whether  a  Legislative  Committee  on  a  public  law, 
should  exclude  all  but  strictly  legal  and  judicial  testimony,  and  should  the 
witnesses  before  them  be  bound  to  conform  to  strict  judicial  rules  of  evi- 
dence, or  be  entirely  excluded  1 

Under  the  rule  of  Judicial  evidence  insisted  on  by  the  Committee,  every 
witness  is  excluded  who  will  not  answer  every  question  that  might  be  put 
to  him  in  a  court  of  law.  If  the  Committee  have  power  thus  to  exclude 
testimony,  on  a  technical  objection,  ought  they  not  first  to  have  the  powtr 
to  summon  witnesses  and  to  compel  them  to  testify  \ 

In  the  present  case,  they  have  no  such  power,  either  to  summon,  to  com- 
pel attendance,  or  to  enforce  answers  ;  nor  can  they  give  this  power,  bv  any 
process,  to  the  memorialists.  If,  then,  they  cannot  aid  the  memorialists  iu 
compelling  the  attendance  and  disclosures  of  witnesses  at  all,  should  they 
reject  the  testimony  which  is  offered,  as  far  as  the  memorialists  can  prevail 
on  witnesses  to  testify;  thus  in  effect,  holding  the  citizens,  who,  in  a  mat- 
ter of  general  interest,  desire  to  aid  the  Committee  in  the  "  formation  of  the 
laws  necessary  for  the  good  administration  of  the  Commonwealth,"  respon- 
sible, as  a  party,  for  full  disclosures  from  witnesses,  whom  neither  they  nor 
the  Committee  have  any   power  to  summon  or  compel  to  testify  ? 

The  Committee  of  the  Legislature  are  not  empowered  to  send  for  per- 
sons and  papers.  It  is  not  in  the  power  of  the  Memoralists  to  invest  them 
with  that  authority.  We  have  shown  them  what  can  be  proved,  and  have 
used  all  the  means  in  our  power,  to  furnish  the  testimony.  If  the  Com- 
mittee reject  this  and  take  no  means  which  they  may  have,  if  any,  to  pro- 
cure the  evidence,  it  necessarily  excludes  any  evidence  whatever 'being 
given  on  those  points  of  the  investigation,  which  would  show  that  prohibi- 
tion tends  to  increase  demand  ;   for  by  the  rule,  as  adupted,  theCummittaa 


m 

of  the  Legislature  exclude  all  testimony,  if,  in  a  single  particular,  it  trees 
not  conform  to  strict  rules  of  judicial  evidence.  Ifthe  Committee  desire  to 
obtain  the  evidence,  it  is  in  their  power  to  enforce  it,  not  in  ours. 

The  citizens  who  appear  for  the  Memorial,  have  done  all  in  their  power 
to  procure  the  pirticular  evidence  which  has  been  excluded.  At  the  com- 
mencement of  the  inquiry,  the  Chairman  of  the  Committee  was  applied  to 
by  the  Counsel  for  the  Memorialists,  for  a  process  to  summon  witnesses. 
lie  declined,  not  having  the  power  to  summon.  He  was  then  requested  to 
invite  the  voluntary  attendance  of  such  as  should  be  named.  This  was  also 
declined.  Consequently  the  Counsel  for  the  Memorialists  could  only  invite, 
and  could  not  require,  the  attendance  of  any  citizen. 

If  the  Committee  of  the  Legislature  have  not  the  power  to  summon  a  wit* 
ness  before  them,  can  they,  if  he  voluntarily  appear,  exercise  the  powers  of 
a  Judicial  tribunal  over  him,  and  compel  him  to  remain  in  attendance,  and 
to  answer  all  questions  put  to  him?  It  is  presumed  they  cannot.  Must, 
then,  the  refusal  to  answer  a  question  that  may  tend  to  criminate  others, 
and  the  answer  to  which  the  Committee  has  no  power  to  enforce,  necessa* 
rily  exclude  the  witness  as  incompetent  to  testify  at  all  1  Must  it  go  to 
his  competency  in  fact,  and  not  to  his  credibility  ? 

To  assume  that  those  who  have  conducted  the  inquiry,  on  the  part  of 
the  Memorialists,  have  the  power  to  comptl  witnesses  to  appear,  and  answer 
all  the  proposed  questions,  and  that,  therefore,  they  are  responsible  for  the 
withholding  of  names  in  private  business,  would  be  incorrect,  and  in  fact 
unjust  to  them.  The  practical  question  is,  we  conceive,  will  the  Legisla- 
tive Committee  receive  such  evidence  as  we  can  obtain,  or  will  they  reject 
the  whole  because  we  cannot  get  more. 

The  state  of  the  case,  as  we  understood  it,  at  the  close  of  the  last  hearing 
before  the  Committee,  was  this : — The  law  of  1838  proposes  prohibition  of 
the  sale  of  ardent  spirits  under  fifteen  gallons,  as  a  means  to  promote,  not 
temperance,  w.hich  implies  a  moderate  use,  but  total  abstinence  from  their  use, 
as  a  beverage.  The  inquiry  is,  will  such  a  law  diminish  the  sale  and  con- 
sumption of  the  article,  and  promote  the  proposed  end  of  the  law.  To  aid 
in  such  an  inquiry,  statistical  facts,  as  to  the  increased  or  diminished 
amount  of  importation  into  the  State,  and  of  the  sales  of  the  article  in  one 
part  of  the  State,  to  be  sent  to  other  parts  of  the  State,  are  highly  import- 
ant. The  memorialists  petition  against  the  law  of  prohibition  "  because  (in 
the  language  of  the  memorial,)  it  must  fail  of  the  professed  object,  and  will 
not  succeed  in  restraining  appetite,  which  will  be  indulged  by  combinations 
and  evasions,  to  a  greater  extent  than  without  this  ineffectual  attempt  at 
restraint." 

They  have  shown,  by  the  best  possible  testimony,  that  of  the  Mayor  and 
Marshal  of  the  city  of  Boston,  that  a  law  of  regulation  can  be  better  en- 
forced, to  promote  temperance,  than  a  law  of  prohibition.  They  also  show, 
from  the  Custom  House  returns,  that  the  increase  of  imported  ardent  spir- 
its in  that  city,  the  past  year  over  the  former,  is  lOG.OOO  gallons,  after  de- 
ducting all  exported;  and  that  the  whole  amount  imported  and  I  aft  for 
home  consumption  the  last  year,  was  393,981  gallons.  The  increase  is  the 
more  remarkable,  as  the  pecuniary  pressure  of  1837  must  have  operated 
greatly  to  diminish  the  importations  of  1838,  in  this  as  in  other  articles. 

They  next  proposed  to  show  that  the  sales,  at  the  place  of  importation, 
have  increased,  as  the  pressure  of  the  laws  against  it  have  increased  ;  and 
that  large  and  increased  sales  of  foreign,  and  especially  domestic  spirits, 
have  been  made  the  last  year,  in  this  city,  to  be  sent  to  the  counties  of 
Bristol,  Nantucket,  Plymouth,  and  Norfolk,  in  which  the  law  of  prohibi- 
tion, by  entire  refusals  to  license,  has  in  effect  prevailed;  and  that  those, 
.ho  have   made  those  s;des,  have  fouud  the  demand  increase  since  1833^ 


63 

especially  the  past  year.  The  bearing  of  such  facts  is  direct  upon  the  ex* 
pediency  and  practicability  of  the  existing  law,  insomuch  that  one  of  your 
honorable  Committee  stated  that  if  convinced  they  were  so,  it  would  oper- 
ate on  his  mind  to  induce  him  to  go  for  the  repeal  of  the  law. 

The  Counsel  for  the  Memorialists,  proposed  to  prove  these  statistics  in 
the  following  manner: — The  private  books  of  ten  manufacturers  and  four 
grocers  in  Boston,  show,  that  they  sold,  of  ardent  spirits,  from  January  ], 
1838,  to  January  28,  1839,  to  be  sent  to  those  Counties,  on  the  orders  of 
persons  not  engaged  in  exporting  them,  an  aggregate  of  79,643  gallons 
for  Bristol  County,  14,213  gallons  for  Nantucket,  30,543  for  Plymouth, 
and  42,540  for  Norfolk,  Bristol  and  Plymouth  :  a  total  of  166,945  gallons, 
equal  to  1518  puncheons,  of  110  gallons  each,  averaging,  by  the  census  of 
1830,  at  the  rate  of  four  and  a  half  quarts  of  ardent  spirits  to  every  man, 
woman  and  child,  in  those  counties. 

This  sale  could  be  shown  from  a  very  few  sources,  the  bulk  of  it  beinc 
domestic  spirits;  and,  it  would  obviously  not  include  all  that  had  gone  in 
that  direction  from  New  York,  Providence,  and  other  sources.  Does  it 
not  then  raise  a  reasonable  doubt  as  to  the  efficacy  or  possible  enforcement 
of  a  law  of  prohibition? 

This  statistical  information  being  highly  important  to  enable  the  Legisla- 
ture to  judge,  whether  a  law  of  prohibition,  is  not  in  its  effects,  a  law  to 
promote,  rather  than  restrain  intemperance;  the  question  is  also  important 
how  can  it  be  got  before  that  body.  The  remonstrants,  by  their  Counsel, 
raised  a  technical  objection  on  the  cross  examination,  that  the  fact  of  the 
sale  should  not  be  given,  unless  the  names  of  the  purchasers  were  dis- 
closed also.  The  witnesses,  to  verify  these  facts,  had  been  sworn.  They 
are  beyond  the  most  remote  suggestion  as  to  veracity,  but  they  cannot  be 
compelled  to  disclose  the  names  of  their  customers,  though  ready  to  give 
every  other  fact  in  their  power.  The  facts  relate  to  their  private  busi- 
ness, aud  are  contained  in  their  books,  over  which  the  Legislature  can  have 
no  control.  Some  of  them  are  signers  to  the  memorial,  and  some  are  not  ; 
but  in  neither  case,  has  the  Counsel  or  the  Legislative  Committee  any 
power  to  compel  them  to  disclose  the  names  of  their  customers.  They  do 
not  know,  nor  do  they  assume,  that  these  customers  have  violated  any  law; 
but  in  the  relation  of  merchant  and  purchaser,  they  say  they  hold  it  a  point 
of  honor,  not  to  voluntarily  disclose  their  private  business,  so  as,  indirectly 
to  be  made  informers  themselves,  or  to  mark  out  individuals  without  their 
consent,  for  the  espionage  of  either  moral  reformers  or  legal  informers. 
The  very  material  difference  between  volunteerng  such  testimony,  and 
giving  it  under  compulsory  process,  to  criminate  others,  is  obvious  to  every 
honorable  mind. 

The  Legislature  has  never  exercised  an  inquisitorial  power,  to  compel 
one  class  of  citizens  to  testify  so  as  to  lead  directly  or  indirectly  to  the 
prosecution  of  another  class;  especially  in  a  case  like  this,  where  the  only 
material  facts  wanted,  as  a  matter  of  statistics,  viz.  the  sale  for,  and  send- 
ing to,  certain  places,  can  be  fully  substantiated,  beyond  a  doubt,  without 
this  invasion  of  the  private  relations  of  business. 

The  Memorialists  cannot  obviate  this  difficulty.  Those  of  them  who 
have  not  the  facts,  cannot  control  those  who  have ;  nor  can  those,  whether 
Memorialists  or  not,  who  have  the  facts  in  their  possession,  disclose  the 
names  of  individuals,  if,  as  honorable  men,  they  feel  bound  not  to  do  so  to 
their  probable  injury,  unless  required  by  absolute  necessity,  or  moral  obliga- 
tion, or  due  process  of  law,  neither  of  which  is  applied  in  this  case. 

A  Committee  for  legislative  inquiry  on  matters  of  public  concern,  may 
exercise  discretion  and  dispensation  as  to  the  form  in  which  the  evidence 
shall  be  received.     It  may  be  by  statements   not  under  oath,  which   is  not 


54 

without  precedent  in  this  State.  In  the  British  Parliament,  the  great  mass 
of  statistical  and  other  facts,  collected  by  committees,  in  reference  to  gen- 
eral laws,  is  received  as  voluntary  statements,  witnesses  not  being  sworn 
before  such  committees. 

Disclosures  that  might  effect  the  pecuniary  and  private  interest  of  third 
persons,  are  frequently  dispensed  with  by  legislative  committees  of  inquiry. 
In  the  exercise  of  full  powers  to  examine  the  banks  charged  with  a  viola* 
tion  of  charter,  a  Committee  of  this  Legislature,  in  1835,  did  not  require 
the  officers  of  the  banks,  under  oath,  to  give  the  names  of  their  customers, 
and  the  Sub-Committee  appointed  to  inspect  the  books,  made  no  disclosure 
of  the  names  of  persons  on  the  discount  sheet;  regarding  the  confidential 
relation  of  the  banks  to  third  persons. 

In  the  investigation  of  the  United  States  Bank,  by  a  committee  of  Con- 
gress with  full  powers,  in  1S34;  the  Directors  of  the  Bank,  when  summon- 
ed by  a  writ  of  dates  tecum,  before  the  Committee,  refused  to  exhibit  the 
names  of  Members  of  Congress,  and  others,  to  whom  the  bank  had  made 
discounts,  or  to  state  the  contents  of  "  the  credit  books  of  said  bank,  show- 
ing the  indebtedness  of  individuals,"  alleging  that,  though  ready  to  give 
all  necessary  information  to  show  the  pecuniary  condition  of  the  bank, 
they  could  not  disclose  the  names  of  individual  debtors,  with  "a  necessary 
regard  to  the  rights  of  others." 

A  majority  of  the  Committee  reported  this  refusal  to  the  House,  as  a 
contempt,  and  moved  for  compulsory  process;  but  the  House,  did  not  sus- 
tain the  motion.  The  report  of  the  minoiity,  presented  to  the  House,  by 
Hon.  Edward  Everett,  and  Hon.  W.  W.  Ellsworth,  justified  the  course 
pursued  by  the  witnessess  in  the  investigation,  on  the  ground  that  "they 
had  phcei  themselves  where  American  citizens,  conscious  of  their  rights, 
should  place  themselves,  under  the  protection  of  the  laws." 

This  precedent  is  not  cited  as  parallel  to  the  present  case,  farther  than 
it  may  rightly  go  in  the  estimation  of  the  Joint  Committee  of  the  Legisla- 
ture who  have  deemed  it  their  duty  to  require  a  similar  disclosure  by  wit- 
nesses before  them,  of  the  names  of  individuals,  not  parties  to  the  issue, 
nor  present,  whose  pecuniary  or  other  interests  may  be  injuriously  affected 
thereby.  Of  the  refusal  of  the  witnesses,  summoned  before  the  Commit- 
tee 'of  Congress,  to  disclose  the  names  of  their  customers,  the  report  of 
Messrs.  Everett  and  Ellsworth  says, — "  the  call  related  to  concerns  involv- 
ing the  highest  confidence  of  individuals,  and  not  to  be  divulged,  except 
under  le^al  compulsion,  without  the  grossest  breach  of  faith." 

Such  is  precisely  the  relation  of  the  witnesses  we  have  offered,  to  their 
customers;  and  the  propriety  of  the  exemption  from  a  breach  of  confidence 
in  business  transactions,  except  under  compulsory  process,  would  seem  to 
be  much  stronger  in  this  case  than  in  the  one  cited  ;  because  the  Commit- 
tee of  the  Legislature,  who  decline  receiving  any  other  testimony  from  the 
witnesses,  unless  they  will  voluntarily  commit  this  breach  of  confidence, 
have  not  the  original  power  of  summoning  a  witness,  or  enforcing  disclos- 
ures, and  must  rely  on  voluntary  testimony  alone,  or  reject  all  testimony, 
to  aid  them  in  reporting  to  the  Legislature  their  opinion  of  the  expediency 
or  inexpediency  of  a  law  of  prohibition. 

The  call  for  names  was  not  made  by  the  Committee  to  satisfy  themselves 
of  the  fact  of  the  aliened  increased  sale  and  transportation  of  liquors  to  par- 
ticular places,  the  Chairman  of  the  Committee  having  stated  that  it  was 
not  desired  by  them,  but  that  the  counsel  for  the  remonstrants  demanded, 
and  were  entitled  to  it,  to  enable  them  to  trace  the  uses  to  which  the  arti- 
cle may  have  been  put.  The  Remonstrants  not  being  a  party  to  the  issue 
before  the  Legislature;  and  appearing  merely  as  citizens  to  aid  the  Com- 
milteu  in  forming  a  correct  opinion  to  report  to  the  Legislature,  the  abso- 


55 

IfHe  right  of  such  a  demand  on  their  part,  not  originally  desired  by  tire 
Committee  for  their  own  information,  is  not  clearly  perceived  ;  nor  could 
it  aid  the  investigation,  should  the  names  be  given,  because  the  Commit- 
tee of  the  Legislature,  having  no  power  to  summon  the  purchasers  here,  or 
to  compel  them  to  criminate  themselves  if  here,  could  not  proceed  any- 
farther  with  the  names  than  without  them,  in  tracing  the  precise  uses  to 
which  the  merchandise  may  have  been  put. 

We  have  offered  to  show  by  the  testimony  of  manufacturers  and 
grocers,  and  their  clerks,  (the  particulars  of  which  are  appended  to  this 
protest)  the  entry  of  sales  in  their  books,  with  specific  dates  and  amounts 
in  every  item;  the  orders  for  specific  places,  and  the  actual  forwarding  of 
the  article  to  persons  known  to  be  tavemers  and  retailers  in  those  counties, 
with  the  particular  mode  of  transportation  ;  in  a  word,  every  fact  connected 
with  the  transaction,  except  the  names  of  individuals  who  might  be  inju- 
riously affected  thereby,  in  their  private  interests. 

All  these  facts,  except  the  names,  might  have  been  given,  on  the  exam- 
ination in  chief,  reserving  the  right,  on  the  cross-examination,  to  withhold 
what  could  not  be  voluntarily  disclosed,  with  "a  necessary  regard  to  the 
right,  of  others,"  and  without  "involving  the  highest  confidence  ofindi- 
viduak;."  But  it  waB  deemed  more  respectful  (o  the  Committee,  and  more 
honorable  to  the  witnesses,  frankly  to  state  the  extent  to  which,  without 
compulsory  process,  they  could  testify.  Such  a  course  it  is  confidently 
believed,  cannot,  in  the  minds  of  the  Committee,  or  of  any  honorable  men, 
prejudice  any  cause. 

At  the  last  hearing  before  the  Committee,  the  Counsel  for  the  Memo- 
rialists desired  delay  for  deliberation  as  to  the  course  they  would  pursue 
under  the  rule  adopted.  It  was  also  suggested,  as  a  means  of  fully  satisfy- 
ing the  Committee  of  the  Legislature,  that  a  Sub-Committee  might  have 
the  inspection  of  the  books  without  a  public  use  of  names,  if  this  would  aid! 
in  the  developement  of  the  facts.  This,  however,  the  Committee  did  not 
think  proper  to  adopt. 

The  memorialists  were  accordingly,  by  the  operation  of  (his  rule, 
deprived  of  the  right  of  producing  evidence  of  material  facts,  and  there- 
fore deemed  it  proper,  as  they  could  not  not  go  on  under  the  restrictions 
put  upon  the  inquiry,  to  withdraw  all  further  testimony  or  any  right  they 
might  urr;e,  to  restrict  whatever  testimony  the  Committee  may  think  proper 
to  receive  from  the  other  side  of  the  question  ;  respectfully  protesting  against 
the  rule,  and  reserving  the  right  at  the  end  of  the  hearing  on  that  side,  to 
be  heard  by  their  closing  Counsel. 

In  relation  to  the  testimony  to  be  offered  by  the  Remonstrants,  we  would 
respectfully  suggest,  that  should  the  evil  effects  of  intemperance,  or  the 
beneficial  operation  of  prohibitory  laws,  on  pauperism,  crime,  morals  or 
government,  be  presented  as  the  basis  of  an  argument  or  inference;  why 
the  Legislature  should  enact  such  laws  against  the  sale  of  alcohol  under 
fifteen  gallons,  would  not  the  Committee,  by  the  rule  applied  to  us,  reject 
such  evidence,  unless  each  fact  is  Judicially  and  fully  proved,  and  the 
names  of  the  individuals/on  whom  such  alleged  effects  have  been  produced, 
disclosed,  in  order  to  enable  those  who  doubt  the  application  of  the  facts,  to 
trace  them  in  all  their  ramifications,  and  ascertain  whether  the  results,  or 
a  portion  of  them,  are  not  fairly  attributable  to  some  other  evils  and  vices 
in  society?  The  object  of  presenting  this  statement  to  the  Committee,  is 
to  avoid  any  misapprehension  in  their  minds,  or  with  our  fellow  citizens, 
as  to  the  position  in  which  the  Memorialists  conceive  they  stand,  in  this 
stage  of  the  enquiry. 

Feb.  5,  1&39.     Read  and  presented  te  the  Committee. 


56 
Sa'ti  of  ardent  spiritsAn  1838  for  Counties  where  no  Licences  were  granted. 

Statement  for  the  sales  for  Bristol  County,  from  January  1,  1838  to  January  20,  1833. 

Population  in  1830,  49,474. 
Gallons.     Gallons. 

Barnard  &  Trull  10,748 

Josiah  Stickney  &  Minot  27,825 

A.   S.  Holmes"  907 

Foss  &  Gilmore  7,605  1-2 

A.   H.  Bowman  6,519 

Ezra  Trull  1,733 

Luther  Felton  1,880^-57,223  1-2  by  7  Diallers. 

Wrio-ht  Priest  &  Co.  10,204 

J.  D.  &  M.  Williams  3,578  1-2 

R.  M.  Morse  &  Co,  3,584 

Silas  Pierce  &  Co.  3,307 

Littlehale  &-  Co.  1,080—52,119  by  5  Grocers. 


Total     79,043,  equal  [to   724    puncheons   of  110 
gallons  each. 

Sales  for  Nantucket  during  the  same  time.     Population  7,203  in  1830. 

Gallons.     Gallons. 
Wright,  Priest  &  Co.  5,385 

Robinson  &  Wigo-in  1,080 

Josiah  Stickney  &  Minot  4.183 

H.  D.  Gray  2,9041-2-14,213  1-2,  equal  to  129  puncheons  of 

110  gallons  each. 


Sales  for  Plymouth  Cour 

»ty 

during  same  lime.     Population 

Barnard  «fc  Trull 

5.721 

David  Barnard 

0,000* 

Josiah  Stickney  &.  Minot 

105 

A  S.  Holmes 

3,150 

Gardner  Brewer 

1,783 

Foss  &  Gilmore 

5.385 

Ezra  Trull 

1,708 

Smith  &  Morse 

024 

Luther  Felton 

4,202 

John  M-  French 

1 ,500— 28,298  by  10  Distillers 

R.  M.  Morse  &  Co. 

1,558 

Merriam  &  Perry 

1,287—2,845  by  2  Grocers. 

Total     31,143,  equal  to  233  puncheons  of  110  gallons  each. 

Norfolk,  Plymouth,  and  Bristol. 
Ezra  Trull  950 

Luther  Felton  9,590 

A.  &  J.  Felton,  for  Bristol,  Norfolk  ) 

and  Plymouth:  5    32,000—42,540. 

Total     107,545  gallons. 

Before  the  foregoing  protest  was 'presented,  the  following  proceeings  oc- 
curred : — 

Objections  to  tlie  rule  of  the  Committee,  excluding  evidence  against  the  Laic. 
At  the  meeting  of  the  Committee,  on  Tuesday  afternoon,  February  5, 
the  Chairman,  Mr.  Walcot,  stated  that  the  Committee  had  met  to  hear  the 
counsel  for  the  memorial  of  Jonathan  Philips,  and  others,  against  the  repeal 
of  the  law. 

Fkanklisn  Dexter,  Esq.,  Counsel  for  the  Memorial  of  Harrison  Gray  Otis,  and 
others,  rose  and  said  that  he  was  not  present  at  the  last  hearing,  when  the  testimony 
on  the  part  of  the  memorialists,  touching  the  increased  sales  in  several  counties  where 
prohibition  had  been  adopted,  was  excluded  by  the  course  of  the  proceedings,  and  as 
he  wished  precisely  to  understand  the  grounds  of  the  objection,  he  would  state  to  the 
Committee  that  the  witnesses  who  had  been  called,  were  prepared  to  show  that  the 
spirit  sent  by  them  to  those  counties  the  past  year,  went  there   for  consumption  as  a 

-Say  4400.     [Corrected  by  Mr.  B.] 


57 

beverage,  the  sales  having  been  made  to  taverns  and  retailers.  They  were  prepared 
to  state  the  particulars  so  lully,  reserving  only  the  names  of  purchasers,  as  to  place  the 
matter  beyond  all  possible  doubt  of  the  only  material  fact,  viz:  the  sale  for  consump- 
tion, and  no  other  purpose,  and  he  submitted  to  the  Committee  whether  the  inemori- 
alists  should  be  permitted  to  offer  this 

Mr.  Walcot,  the  Chairman,  said  that  the  Committee  had  agreed  on  the  form  of  oath, 
which  was,  to  tell  the  whole  truth,  and  it  was  for  the  witnesses  to  say  whether  they 
■vould  take  the  oalli.  It  was  not  suggested  at  the  former  hearing,  that  the  occupations 
of  the  purchasers  would  be  given,  to  prove  the  destination  of  the  liquor.  This,  how- 
ever, would  not  relieve  the  witness,  on  the  cross-examination,  from  answering  a  call  to 
disclose  the  names  of  the  purchasers. 

Mr.  Dexter. —  I  think  it  is  fair  that  the  witnesses  should  have  the  opinion  of  the 
Committee,  as  well  as  of  the  Chairman,  on  the  suggestion  now  made.  I  shall  advise 
them  to  take  the  oath,  reserving  the  right  to  withhold  names,  should  they  be  called  for. 
We  will  offer  a  witness  to  test  the  question,  whether  the  Committee  will  riceive  his 
testimony  and  excuse  him  from  answering  a  call  for  names. 

The  Chairman. — That  question  was  raised  by  the  Counsel  for  the  Memorialists  at 
the  last  sitting,  and  was  settled  by  the  Committee. 

Mr.  Dexter. — Then  I  understand  the  rule  is  to  be  enforced,  that  the  witnesses  shall 
not  be  permitted  to  give  evidence  of  the  sale  and  destination,  and  use,  unless  they  will 
give  the  names  of  purchasers. 

The  Chairman. — That  is  not  the  decision.  It  was  that  the  witnesses  could  not  be 
excused  from  giving  the  names,  if  required^on  cross-examination. 

Mr.  Dexter. — 1  now  propose  that  the  witnesses  be  called  to  state  that  these  sales 
were  made  to  taverners  and  retailers,  and  submit  to  the  Committee  whether  this  tes- 
timony is  not  conclusive  to  establish  the  fact,  without  requiring  the  names. 

Mr.  Sprague,  (Counsel  for  Remonstrants) — The  Committee  have  decided  this  ques- 
tion, as  the  gentleman  must  well  know,  and  on  broad  principles,  which  no  tribunal  on 
earth,  that  wishes  to  get  truth,  can  depart  from.  They  now  offer  to  show  the  article  was 
sent  to  retailers  and  taverners,  but  how  can  we  know  that  they  are  such,  unless  their 
names  are  given?  We  know  not  what  witnesses  may  state,  unless  we  can  require 
a  disclosure  of  all  the  facts,  to  have  an  opportunity  to  disprove  them.  The  witnesses 
may  state  that  they  are  taverners  and  retailers,  when  they  are  not  so. 

Mr.  Dexter.  —  I  have  but  one  remark  to  make  on  that  intimation,  and  that  is,  I  do  not 
believe  that  when  the  witnesses  we  call,  stand  up  here  and  state  the  facts  on  their  oath, 
an  individual  in  the  community  will  doubt  their  testimony,  except  the  opposite  counsel. 

The  Chairman. — The  Committee  have  no  power  to  summon  witnesses  before  them. 
They  have  agreed  upon  the  form  of  oath  to  be  administered,  and  unless  the  witness  will 
take  the  oath  and  come  under  the  rule,  he  cannot  be  examined.  If  any  one  of  the 
Committee  wishes  a  reconsideration,  the  rule  can  be  reconsidered. 

Mr.  Dexter. — That  is  not  what  is  asked  of  the  Committee.  I  ask  for  a  direct  decis- 
ion from  the  Committee  itself,  whether  the  witness  cannot  be  admitted  to  be  examined, 
he  reserving  his  right  to  the  limitation  as  to  giving  the  numes  of  individuals. 

The  Chairman. — The  Committee  have  decided  that  question,  and  it  cannot  be  again 
presented,  but  upon  reconsideration. 

Mr.  Dexter.  —  1  am  sensible  that  any  farther  remarks  from  me  would  be  useless.  It  is 
then  the  determination  to  exclude  the  testimony. 

Mr.  Lincoln  understood  the  rule  to  be  to  admit  and  not  to  exclude  testimony.  They 
were  not  called  on  to  make  an  absolute  rule.  If  a  witness  was  willing  to  testify,  he 
should  tell  the  whole  truth. 

The  Chairman  called  for  the  hearing  of  the  Remonstrance  of  Jonathan  Phillips  and 
others,  and  asked  —  Has  the  other  side  any  further  facte  to  offer? 

Mr.  Dexter. — I  mean  to  be  understood;  and  to  bring  the  matter  to  an  issue,  I  will  of- 
fer a  witness,  and  advise  him  to  take  oath,  and  not  give  the  names  of  individuals. 

The  Chairman. — If  there  are  any  witnesses,  we  are  ready  to  hear  them. 

Mr.  Moses  Williams  presented  himself,  and  slated  that  he  had  taken  the  oath  befoie 
the  rule  laid  down  by  the  Committee,  requiring  the  names  of  customers,  had  been  adop- 
ted. He  had  supposed  that  the  Committee  would  be  desirous  of  receiving  such  infor- 
mation as  might  be  properly  communicated.  He  held  in  his  hand  an  extract  from  his 
books,  which  showed  each  item  and  date,  and  the  individual  to  whom  it  went,  taken  off 
by  himself,  and  checked  by  his  clerk  to-day.  He  had  sent  it  on  orders  of  four  persons, 
and  he  was  willing  to  state  the  occupation  and  every  particular,  nut  the  name. 

Mr.  Dexter. —  I  now  ask  if  the  Committee  will  permit  the  examination  to  be  made,  if 
the  witness  reserves  his  right  not  to  answer  as  to  the  names  ? 

Mr.  Lincoln. — He  is  sworni  and  he  may  proceed  to  testify. 

Mr.  Dexter. — Then  we  will  proceed  to  examine  him. 

Mr.  Upton,  of  Nantucket — It  is  the  same  thing  over  ag.-j.in.  The  Committee  have 
once  decided,  and  this  is  trifling  with  the  Committee. 

Mr  Sprague,  (Counsel  for  Remonstrants.)  —  If  a  witness  comes  before  a  tribunal  and 
refuses  to  answer  any  question  put,  it  is  a  contempt,  and  if  the  Committee  let  this  wit- 
ness go  on,  it  is  in  contempt  of  them. 

8 


58 

The  Chairman.— This  is  the  third  time"  this  matter  has  been  brought  up,  and  on  three 
several  days,  and  the  Committee  have  not  reversed  the  first  decision  of  the  Chair.  The 
witness  is  sworn  to  tell  the  whole  truth,  and  he  must  either  answer  all  or  none. 

Mr.  Dexter. — I  still  do  not  get  the  deliberate  decision  of  the  Committee,  but  only 
that  of  the  Chairman  which  preoccupied  the  ground.  To  get  at  that  question,  I  will 
offer  a  witness  who  has  not  been  sworn. 

The  Chairman. — The  question  is  for  each  witness  to  answer  to  his  own  conscience, 
whether  he  will  take  the  oath  to  tell  the  whole  truth  and  keep  back  a  part.  He  must 
answer  as  he  thinks  proper. 

Mr.  Lincoln.— There  is  no  question  before  the  Committee.  The  question  is  for  the 
counsel  and  not  for  us.  I  would  not  say  this  is  trespassing  on  our  patience,  but  unless 
they  can  bring  witnesses  who  will  conform  to  the  rule,  I  see  no  use  in  their  being  pre- 
sented at  all.  °  If  the  Counsel  wishes  to  put  a  witness  before  us  who  will  refuse  to  an- 
swer, that  is  for  him  to  decide.  It  is  not  now  the  question  how  the  committee  will  vin- 
dicate its  honor,  if  he  refuses  to  answer.  «  If  a  witness  presents  himself  and  takes  the 
whole  oath,  he  must  answer  the  whole  questions. 

Mr.  Dexter. — I  have  now  accomplished  all  I  wished.  1  have  presented  this  testimo- 
ny in  two  forms,  putting  it  distinctly  in  the  power  of  the  Committee  to  obtain  it,  if 
they  wish  to  be  informed  on  the  particular  facts  bearing  upon  the  question  before  them. 
1  am  now  given  to  understand,  though  indirectly,  that  if  a  witness  does  not  answer 
a  question  which  he  feels  bound  in  honor  not  to  answer,  and  which  is  not  essential  to 
establish  the  fact,  he  will  be  held  in  contempt.  As  1  do  not  choose  to  subject  any  wit- 
ness to  be  sent  to  jail,  should  the  Committee  suppose  they  have  that  power,  1  must 
here  leave  the  evidence,  regretting  that  this  very  important  source  of  information  should 
thus  be  cut  off. 

[Mr.  Hallett,  then  presented  and  read  the  Protest  against  this  rule. 

Tuesday,  February  5th. 
Nathan  Crosby,  Esq.  opened  the  objections  to  the  repeal  of  the  Act, 
on  the  part  of  the  Remonstrance  of  Jonathan  Philips  and  others,  and  occu- 
pied that  day's  sitting.  He  closed  his  remarks  on  the  6th,  and  was  follow- 
ed by  John  A.  Bolles,  Esq.,  who  also  opened  on  the  same  side  of  the  ques- 
tion." Mr.  Bolles  spoke  five  hours,  and  finished  on  the  8th  of  February.  [The 
Committee  have  no  full  report  of  these  speeches,  and  as  a  sketch  of  them 
might  do  injustice  to  the  parties,  they  prefer  to  leave  their  publication  to 
the  friends  of  the  Law,  designing  on  their  part  to  present  their  own  side  of 
the  question,  and  the  evidence  on  both  sides,  fully  and  fairly,  and  not  to  pre- 
judice the  other  side  by  attempting  what  may  be  considered  a  partial 
representation.] 

TESTIMONY  FOR  THE  REMONSTRANCE. 

February  9th.  The  Remonstrants  offered  their  testimony,  and  began  with 
Joseph  Kingsbury  of  Amesbury.  He  stated  that  he  had  resided  in 
Amesbury  and  Salisbury  village  fifteen  years.  When  he  first  resided  there, 
every  grocer  retailed  ardent  spirits — almost  every  man  in  the  place  drank 
it — and  there  was  much  drunkenness  in  the  village.  When  afterwards 
license  were  witheld,  the  grocers,  with  two  or  three  exceptions,  continued 
the  traffic  as  before.  Prosecutions  were  then  commenced — a  number  of 
persons  were  convicted,  and  a  slop  was  thus  put  to  violations  of  the  law. 
At  this  time  Temperance  lectures  were  delivered,  showing  the  immorality 
of  the  trafic — and  the  retailers  made  a  proposition  to  the  Temperance  society, 
that  if  the  society  would  take  their  ardent  spirits  off  their  hands,  they  would 
purchase  no  further  supply.  This  was  done,  and  the  effect  had  been  most 
beneficial — the  consumption  has  been  reduced  at  least  seven  eighths — and 
drunkenness  was  seldom  witnessed  in  that  village. 

Being  asked  how  much  was  owing  to  moral  suasion  in  his  town  ;  he  said 
we  lad  a  temperance  lecture  and  the  force  of  it  wa  so  strong  the  dealers 
came  forward  and  said,  if  the  temperance  society  would  take  the  liquors  off 
their  hands  they  would  not  s  II,  and  we  did  so.  [It  did  not  appear  what 
the  socie  y  did  with,  the  liquor  so  purchased.]  Should  Parker,  who  kept 
the  tavern,  gave  up  the  sale  voluntarily — witness  does  not  know  of  any 
place  where  it  was  now  sold  in  Amesbury. 


59 

[Two  Merchants  of  Boston  were  present  in  the  hall,  who  stated  to  some 
of  the  Memorialists  that  they  had  sold  spirits  to  go  to  Amesbury  within  a 
few  days,  and  had  constant  customers  there.  Testimony  of  this  kind,  had, 
however,  been  excluded  by  the  ruling  of  the  Committee,  unless  names  were 
given  to  lead  to  prosecutions.] 

Friday,  February  10. 

Rev.  Mr.  Perry  of  Bradford,  E.-sex  County,  called  for  the  Remon- 
strants. For  four  years  past,  Licenses  of  Shops  had  been  withheld  in  Es- 
sex County,  and  Tavern  Licenses  had  decreased.  The  general  impression 
of  the  temperate  men  was,  that  it  had  been  beneficial.  Some  of  the  stores 
had  continued  to  sell  after  1834,  but  for  three  years  very  little  ardent  spir- 
its had  been  sold,  as  he  supposed,  unless  covertly.  Wines  were  sold  as 
usual.  Comparing  the  four  years  past  to  the  four  preceeding,  he  should 
think  the  sales  of  liquors  one  third  less.  He  had  been  over  the  County  as 
a  temperance  agent,  his  parish  having  relinquished  his  services  for  that 
purpose.  He  supposed  there  might  be  some  places  where  it  was  now  free- 
ly sold,  particularly  the  taverns.  What  he  had  said  of  Bradford  he  thought 
might  be  generally  true  of  the  County,  except  some  few  towns.  There  was 
a  floating  population,  who  if  they  could  not  get  ardent  spirits  in  one  town, 
would  move  to  another.  There  had  been  no  change  in  the  use  of  spirits 
since  the  law  of  1838,  to  make  it  a  subject  of  remark.  So  far  as  regarded 
the  poor,  there  had  been  no  essential  change  in  Bradford  the  past  eight 
years. 

Cross-examined.  Moral  means  had  been  used  to  a  great  extent.  He 
had  preached  to  his  congregation  that  it  was  immoral  to  sell  or  use  it.  Be- 
ing asked  if  his  parish  had  taken  a  deep  interest  in  the  moral  cause  of  tem- 
perance !  he  did  not  think  they  had,  which  he  qualified  by  saying,  as  much 
as  he  wished.  But  admitted  they  paid  his  salary  and  supplied  his  pulpit  to 
allow  him  to  act  as  a  temperance  agent.  He  had  no  means  of  knowing 
whether  it  was  sold  in  Bradford.  He  did  not  go  into  back  places,  or  visit 
taverns,  and  did  not  suppose  that  they  wouid  show  him  the  places,  if  there 
were  any,  it  was  sold  in  covertly.  They  sent  into  other  places  and  got  fif- 
teen gallons  at  a  time,  if  they  wanted  it.  One  person,  Merrill,  had  been 
prosecuted  within  two  or  three  years.  Before  that,  two-thirds  of  the  prose- 
cutions had  been  got  up  by  the  drinkers.  The  temperance  society  had  ne- 
ver prosecuted.  He  had  always  dissuaded  them  from  it.  On  being  press- 
ed, he  says  the  society  rely  more  on  moral  means  than  law  to  advance  the 
temperance  reform.  Thinks  that  a  strong  minority  might  present  obstacles 
to  enforcing  the  law,  but  he  wanted  law  to  aid  the  temperance  cause.  It 
was  no  security  for  one  town,  if  it  was  sold  in  another. 

Samuel  Wells,  of  Northampton,  is  clerk  of  the  Court.  The  County 
Commissioners  of  Hampshire  had  withheld  licenses  from  shops  for  three 
years.  They  licensed  taverns.  Should  think  the  consumption  had  di- 
minished. In  1827,-35,000  gallons  were  sold  aunually  in  the  County.  In 
1831  it  was  reduced  to  5000  gallons,  and  had  probably  decreased  since. — 
He  could  not  state  the  amount.  It  had  been  gradually  decreasing.  The 
tavern  licenses  in  the  County  had  diminished  100  in  twenty  years.  Thinks 
there  were  about  40  retail  shops  when  licenses  were  withheld.  The  crim- 
inal prosecutions  before  him  were  from  25  to  40  a  year,  and  nine-tenths 
were  owing  to  intemperance.  The  decrease  of  consumption,  within  six 
vears.  he  should  think  was  one  third.  Six  distilleries  had  been  discontin 
ued,  and  he  did  not  know  of  but  one  m  the  County. 

Cross-Examim  d.  How  much  of  what  you  have  stated  as  to  the  amount 
sold  or  consumed,  do  you  personally  know  to  be  true  ? 

On  my  own  personal  knowledge? 


60 

Yes.     Not  what  you  guess,  but  what  you  know.     State   on    your   oath. 

I  say  on  my  oath  I  know  nothing  about  it. 

Did'you  not  undertake  to  give,  on  your  oath,  the  precise  amount  of  sales 
in  1827  and  in  1831  ? 

That  was  from  others.     1  was  so  informed. 

By  whom  ? 

By  an  agent  of  the  temperance  society,  who  went  through  the  County, 
and  collected  the  facts. 

Do  you  give  that  as  evidence  ? 

I  stated  what  I  supposed  was  the  fact. 

Being  further  questioned,  he  says  that  the  distilleries  were  discontinued 
voluntarily.  Two  in  Graiiby  were  grain  distilleries,  the  others  were  cider 
stills.  Great  moral  efforts  had  been  used— preaching,  pledges,  tracts,  lec- 
turers to  go  through  the  County,  &c.  There  were  seven  or  eight  licensed 
taverns  in  Northampton.  Drunkenness  had  diminished.  He  would  not 
say  that  forty  inhabitants  of  Northampton  were  tried  for  crimes  annually. 
Being  asked  if  it  was  possible  that  in  the  moral  community  of  North- 
ampton, 36  of  its  inhabitants  annually  committed  crimes  Irom  drunken- 
ness, witness  admits  that  some  are  foreigners,  perhaps  ten  or  twelve. 
Being  asked  if  these,  cases  had  increased  or  diminished  the  last  year,  he 
says  that  there  were  forty  the  last  year,  which  is  the  highest  number  he 
remembers.  Before  the  recent  law,  there  was  no  excitement  against  the 
temoerance  movements.  There  had  been  a  great  deal  of  excitement  under 
the  law,  among  the  sellers  and  drinkers. 

Were  no  others  opposed  to  the  law  ?     No,  but  some  thought  it  impolitic. 

Were  those  who  thought  the  law  impolitic  in  favor,  of  it?     No. 

Then  were  they  not  opposed  to  it?  Yes,  but  it  was  on  account  of  its  in- 
juring the  party. 

Which  party  ?     Both  parties. 

Did  these  persons  think  it  impolitic  because  it  would  injure  both  parties? 
Witness  did  not  answer,  and  the  inquiry  was  dropped. 

By  Mr.  Crosby.  Did  you  ever  know  the  distillers  and  dealers  to  ex- 
ert a  moral  influence  in  dissuading  their  customers  f.om  drinking?     No. 

By  Mr.  Hallctl.  Did  you  ever  know  a  temperance  agent  to  dissuade 
temperance  societies  from  employing  and  paying  him  in  his  occupation  ? 
Witness.     If  it  is  a  proper  question  I  will  answer  it. 

The  Chairman.     The  pertinency  of  the  question  is  not  perceived. 

Mr.  Hallett.  I  merely  asked  it  to  answer  the  question  put  on  the  other 
side.     It  seems  equally  pertinent. 

Mr.  Crosby.  I  asked  the  question  because  the  gentlemen  distillers  and 
dealers  in  this  memorial,  claim  to  be  the  friends  of  temperance. 

Mr-  Hallett.  And  I  asked  the  question  because  the  gentlemen  tempe- 
rance agents  in  this  remonstance  claim  to  be[purely  disinterested. 

Col.  Minot  Thayer  of  Braintree,  gave  an  interre^ting  statement  of  the 
progress  of  temperance  in  that  town,  which  he  attributed  partly  to  moral 
influence,  and  partly  to  the  law.  lie  could  only  state  what  had  been  told 
to  him.  Has  not  seen  a  person  intoxicated  in  the  town  for  two  years. 
Formerly,  a  farmer  gave  his  workmen  a  gallon  a  day.  Now  gave  none. 
They  have  but  three  male  paupers  in  the  town.  Related  a  melancholy  ac- 
cident, some  years  ago,  of  an  outrage  upon  a  dwelling,  and  its  sick  owner 
being  killed  by  a  stone,  thrown  by  a  drunken  party  of  young  men.  The 
town  of  Braintree  was  a  highly  moral  town,  and  he  believed  was  so  when 
they  sold  rum,  but  had  improved.  He  employed  two  laborers,  formerly  in- 
temperate, who  begged  him  to  support  the  law.  He  did  not  know  that  the 
Weymouth  packet  sold  rum  there  last  winter.  In  answer  to  a  question 
from  Mr.  Buckingham,  he  said  they  sold  wine  there,  but  he  did  not  cal 


61 

wine  spirits.  If,  said  he,  I  came  into  your  store  and  asked  for  spirits  you 
would  not  give  me  wine.  Mr.  B.  replied  that  he  would  get  neither  in  his 
store,  for  he  kept  none. 

Col.  T.  believed  that  the  people  in  his  town  were  united  in  support  of 
the  law.  Being  asked  if  there  was  not  some  opposition  to  it,  he  thought 
there  was,  but  none  of  any  consequence,  though  it  might  have  something 
to  do  with  the  election.  Before  the  law,  temperance  was  going  on  well 
there,  and  he  did  not  think  it  less  so  since.  Being  asked  what  his  major- 
ity was  in  the  town,  he  said  it  was  so  large  he  could  not  remember. 

[It  was  afterwards  understood  that  the  Col's,  majority  was  only  four ! 
against  an  opponent  o  f  the  Law.] 

Sherman  Lei.and,  Judge  of  Probate,  of  Roxbury,  Norfolk  County,  was 
called,  and  went  iutu  an  argument  and  narrative. 

He  described  the  process  of  subduing  the  dealers  in  that  place,  com- 
menced about  two  years  ago.  The  Temperance  Society  appointed  a  com- 
mittee to  prosecute.  They  warned  the  dealers, who, nevertheless, continued 
to  sell,  then  they  were  prosecuted.  There  was  great  excitement.  The 
dealers  agreed  to  stop,  but  began  again,  and  were  again  prosecuted.  Ex- 
citement ran  high,  and  a  town  meeting  was  called.  The  state  of  feeling 
was  such,  the  agents  of  the  Society  thought  it  prudent  to  suspend  opera- 
tions. They  let  them  go  on,  till  the  fines  amounted  to  four  or  five  hundred 
dollars  in  each  case,  and  then  took  them  into  Court.  Some  plead  guilty, 
and  some  were  convicted.  The  dealers  agreed  to  compromise,  and  were 
let  off  on  paying  $100  each,  and  the  remainder  of  the  fines  was  kept  hang- 
ing over  them  for  their  good  behavior.  Most  ot  the  principal  dealers  in 
large  and  respectable  taverns  were  broken  up,  and  by  this  process,  in  eigh- 
teen months,  the  principal  dealers  wete  entirely  subdued.  When  the  elec- 
tions of  County  Commissioners  came  on,  the  prosecution  relaxed,  and  the 
trade  began  again.  There  was  always  an  increase  of  drinking  in  the  ex<- 
citement  of  an  election,  when  they  Imped  to  bring  ahout  a  change.  The 
Commissioners  opposed  to  licensing  had  a  majority  of  62  in  Roxbury.  Six 
prosecutions  were  then  commenced,  and  the  trade  appears  now  to  be  essen- 
tially broken  up.  Should  think  very  little  was  sold  in  the  town  now.  Some 
moral  means  were  used;  but  the  law  was  put  in  force  stifly,  and  order  and 
quiet  were  restored.  He  did  not  see  as  many  red  faces  congregated  to.- 
gether,  as  he  used  to.  However  under  the  name  of  wine,  they  still  get 
spirits.  One  or  two  grocers  also  sell  liquors.  It  was  not  possible  to  pro- 
hibit spirits  where  wine  is  allowed  to  be  sold.  The  way  to  convict  the  deal- 
ers was  to  take  them  before  they  could  see  their  customers,  and  they  would 
generally  plead  guilty.  If  you  bring  them  up  before  Court, nine  out  often 
of  their  customers  would  swear  to  what  was  not  true.  The  great  difficulty 
of  enforcing  the  law  was  the  timidity  of  its  fiiends.  They  wete  afraid  to 
prosecute.  He  had  no  doubt  that  rum  was  sold  in  some  of  the  towns,  and 
that  what  a  witness ^Mr.  Baker)  had  said  of  Milton  was  true.  The  deal- 
ers there  had  not  been  subdued,  especially  at  the  Railway  House.  You 
could  not  subdue  them  with  $20  fines  but  must  get  an  accumulation  of 
fines.  It  had  increased  the  costs  against  the  Commonwealth,  but  it  was 
the  best  course.  He  supposed  he  knew  about  how  it  stood  in  all  the  towns 
in  Norfolk  County.  Roxbury  he  had  described. — Brookline.no  sale.  Dor- 
chester, some  in  the  South  Parish.  Milton,  pretty  tree.  Quincy,  a  free 
trade.  Braintree  and  Weymouth,  none.  Cohasset,  a  little,  Randolph,  a 
little.  Canton,  too  much.  Foxborough,  an  example  for  any  town.  Wren- 
tham,  Walpole,  and  Franklin,  none.  Dedham,  a  little.  Bellingham,  con- 
siderable. When  you  produce  an  excitement  by  attempting  to  enforce  a 
law,  they  will  drink  more,  until  they  are  subdued.  You  may  carry  temper- 
ance to  a  certain  point,  and   then   you   want   the   law.     As  to  Boston,   he 


62 

thouo-ht  it  would  be  very  difficult  to  enforce  the  law  there.  It.  would  require 
very  vigorous  measures.  If  the  friends  of  the  law  would  combine,  in  every 
Ward,  and  prosecute  every  offender,  as  they  had  done  in  Norfolk,  till  the 
fines  run  up  to  a  large  sum,  he  thought  they  might  be  subdued  in  time.  If 
it  was  left  to  the  city  authorities,  it  would  never  be  done. 

Cross  examined. — He  was  employed  by  the  Temperance  Society  in  these 
prosecutions,  and  paid  for  it.  He  thought  it  best  to  have  the  relation  of 
of  counsel  to  clients  in  looking  up  the  prosecutions,  The  prooceedings  he 
had  related  took  place  under  the  old  law. — The  new  law  had  not  been  ap- 
plied. There  was  some  opposition  to  it,  and  they  could  not  elect  their  re- 
presentatives. Had  to  compromise  with  three  for  the  law  and  two  against 
it.  This  was  in  consequence  of  the  administration  party,  on  the  third  day 
bringing  up  temperance  candidates.  He  corrected  himself,  and  did  not 
mean  to  say  that  no  temperance  men  were  opposed  to  the  law.  There  was 
perhaps  more  opposition  than  there  had  been  before  this  law,  but  he  thought 
it  could  be  subdued.  As  to  how  far  religion  could  be  carried,  without  law, 
he  could  not  undertake  to  say.  He  would  not  advise  to  bring  in  law  to  en- 
force it  beyond  a  certain  point.  What  the  effect  would  be  on  the  whole 
Commonwealth,  if  the  same  excitement  was  kept  up  (or  eighteen  months, 
throughout  the  State  as  in  Roxbury,  to  subdue  the  dealers,  others  must  judge, 
but  it  would  not  operate  in  the  small  towns,  where  public  sentiment  was 
well  settled.  Undoubtedly  the  prosecutions,  if  the  parties  stood  trial,  would 
lead  to  a  gieat  deal  of  perjury.  He  should  not  rely  on  the  customersif  he 
could  help  it.  Being  asked  what  opinion  he  had  recently  expressed  con- 
cerning the  new  law,  he  said,  he  doubted  if  it  was  not  premature,  and  he 
would  modify  it,  if  left  to  him,  so  as  to  regulate  the  sale  of  a  gallon  and 
upwards,  and  leave  the  Counties  to  decide  as  to  a  less  quantity  He  had 
seen  the  Rhode  Island  law  just  passed,  and  approved  it,  and  thought  our 
law  would  be  more  efficacious  if  so  modified.  In  fact,  said  he,  you  never 
can  make  the  people  tranquil  under  any  law  unless  you  include  wine  in  the 
prohibition. 

Tuesday,  February  12. 

DR.  ABEL  L.  PIERSON  of  Salem,  was  sworn,  to  show  the  physical 
evils  of  intemperance.  [The  Memorialists  had  in  no  way  called  this  in 
question,  but  the  Committee  deemed  it  necessary  to  have  it  proved.] 

Dr.  Pierson  stated  that  he  had  been  in  medical  practice  twenty-two  years. 
In  answer  to  the  inquiry  what  is  (he  effect  of  alcohol  on  the  humansystem  1 
he  replied — That  he  had  practiced  among  the  poor,  when  young,  and  tlicy 
generally  use  ardent  spirits.  A  great  deal  of  intoxicating  liquor  is  drank 
which  contains  other  properties  than  alcohol.  Distillation  in  copper,  causes 
copper  precipitate.  He  believed  that  common  rum  and  gin  contained  other 
qualities  besides  alcohol.  There  was,  perhaps,  as  little  of  deleterious  qunl- 
ities  in  New-England  rum,  as  in  any  spirit.  The  immediate  effect  of  alco- 
hol on  the  stomach  was  inflamation.  If  its  effect  be  very  great,  it  would 
extinguish  life  at  a  blow.  It  operates  on  the  blood  like  electricity.  Ascends 
to  the  brain  and  quickens  the  motion  of  the  heart,  making  a  man  "  live  too 
fast,"  as  the  saying  is.  It  is  absorbed  by  the  veins.  The  heart,  under  its 
influences,  beais  1 10,000  times  a  day.  It  should  never  bent  but  100,000 
times.  Apoplexy  is  caused  by  the  heart  driving  the  blood  into  tire  brain, 
and  producing  congestion. 

The  remote  effects  are,  that  the  stomach  becomes  habituated  to  the  stim- 
ulus, and  requires  it.  Induration  is  produced,  and  finally  ulceration.  A 
great  qua  iti  y  can  be  borne,  and  a  person  may  use  it  to  excess,  and  retain 
tolerable  health.  It  i§  a  poiaoji,  but  a  very  slow  poison,  and  may  be  used 
in  proper  quantities  with  impunity.  Men  may  use  poison  without  serious 
injury.     Dropsy  is  a  common  case  in  drunkards. 


63 

As  to  the  effect  on  the  senses.  Insanity  and  intemperance  ad  on  each 
other.  Intemperance  affects  the  hearing.  Perhaps  yon  (to  Mr.  Crosby) 
may  not  have  experienced  the  effect,  but  it  produces,  a  sensation,  like  water 
wheels  turning.  It  affects  the  sight,  so  that  a  man  may  see  double.  Has 
a  tendency  to  prevent  cure  of  diseases,  and  to  aggravate  them.  The  only 
way  to  guard  men  against  it,  is  to  protect  them  from  themselves.  When  a 
man,  is  found  frozen  to  death,  there  is  always  an  empty  bottle  by  his  side. 
Have  seen  many  diseases  that  he  traced  to  the  use  of  alcohol. 

As  to  its  medicinal  qualities — To  a  healthy  man  he  should  say,  avoid  all 
intoxicating  drinks;  but  if  out  of  health,  it.  may  be  useful  as  a  medicine. 
In  this  country,  the  article  was  much  less  adulterated  than  in  Europe.  Here 
it  was  honest  alcohol.  In  Europe,  it  is  drugged  to  increase  stimulus.  Reads 
from  the  Domestic  Chemist  as  to  dru^s  in  English  ardenis.  It  was  a  mis- 
take  that  ardent  stimulus  aided  labor,  or  relieved  fatigue.  It  caue,,s  a  man 
to  do  more  for  a  brief  period,  but  at  the  expense  of  his  constitution.  Al- 
cohol was  beneficial  as  medicine,  but  a  person  in  health  should  avoid  all  in- 
toxicating liquors. 

Cross-examined  by  Mr.  Hallett.  Were  not  the  physical  effects  of  luxury 
and  gluttony  in  eatinghighly  deleterious?  Ans.  Unquestionably  they  were, 
and  often  led  to  aggravated  diseases. 

Ques.  Can  men  be  morally  persuaded  not  to  eat  to  excess  ?  Ans.  Not 
in  all  cases. 

Qucs.  Would  you  recommend  a  law  that  should  enforce  such  a  diet  as 
physicians  would  prescribe  to  be  safe  and  healthy  ?  Ans.  Such  a  law  would 
be  perfectly  proper  in  many  cases.  It  a  shell  fish  should  be  fLund  in  great 
abundance  on  ourshores,  of  a  delicious  flavor,  but  which  produced  a  poison- 
ous effect  on  the  system,  prostrating  the  body  and  mind,  and  producing  dis- 
ease, misery  and  death — and  the  people  were  so  infatuated  that  they  would 
cot  be  persuaded  to  forego  partaking  of  this  poisonous  food,  he  thought  it 
would  not  only  be  proper,  but  the  duty  of  the  Legislature,  to  pass  penal  acts 
to  restrain  persons  from  destroying  in  this  way,  themselves  and  their  fam- 
ilies. 

Ques.  You  think  then,  the  people  are  not  to  be  trusted  with  the  regula- 
tion of  their  own  appetite  for  food  as  well  as  for  drink  ;  but  would  you  in 
the  case  supposed,  have  a  law  that  the  rich  might  use  fifteen  bushels  of  the 
shell  fish,  but  the  poor  not  have  a  less  quantity,  if  they  could  buy  it  ?  Ans. 
He  would  prohibit  it  altogether.  Whatever  was  clearly  proved  to  be  inju- 
rious, he  would  prohibit  by  legislation  ! 

Ques.  Would  it  be  physically  possible  for  a  man  to  live  till  seventy  or 
eighty,  in  the  habitual,  constant  use  of  such  a  poison  as  you  describe  =ilco- 
hol  to  be?  Ans*  I  have  stated  that  it  is  a  slow  poison,  and  that  a  man 
might  accustom  himself  to  the  use  of  positive  poison. 

Ques.  But  Doctor,  how  is  it  that  the  medical  faculty  never  discovered 
the  physical  effects  you  have  described,  until  recently?  Ans.  He  could  as- 
sign no  reason,  if  they  had  not,  unless  it  was  that  modern  medical  science 
had  progressed  farther. 

Ques.  In  dissections,  would  not  the  indications  of  poison  in  the  stomach 
appear  ih  the  subject  who  died  from  poison.  Ans.  Undoubtedly.  The 
presence  of  such  an  agent  would  be  indicated. 

Ques.  Has  not  medical  science  for  the  last  thirty  years,  been  competent 
to  detect  poison  in  the  stomach  1     Ans.   It  has. 

Ques.  Will  you  then,  explain  why  the  most  celebrated  anatomical  pro- 
fessors never  detected  the  poison  of  ardent  spirits  in  the  stomach,  till  with- 
in a  dozen  years  ?  Ans.  He  could  not,  if  such  were  the  fact,  but  he  pre- 
sumed it  had  been  detected. 


64 

Ques.  Can  you  nime  any  case  in  which  the  medical  faculty,  previous 
to  1827,  discovered  in  their  dissections  the  evidences  of  poison  you  have 
described,  arising  from  alcohol?  Alts.  He  could  not;  their  attention  was 
not  called  to  it. 

Ques.  Then  does  not  the  preconceived  desire  to  find  these  iesults,  aid 
in  their  discovery?  Ana.  He  was  not  aware  that  it  did,  but  he  presumed 
that  anatomists  had  made  the  discovery  bng  ago,  though  it  had  not  been 
minutely  developed. 

Ques,  Was  not,  in  fact,  Dr.  Rush  of  Philadelphia,  the  first  physician 
who  represented  the  moderate,  habitual  use  of  ardent  spirits  as  unnecessary 
and  injurious  ?  Ans.  No;  he  considered  Hypocrates  as  the  first  discov- 
erer of  the  f.ict.      It  was  as  old  as  medicine. 

Ques.  Can  \o;i  refer  to  any  authority  to  establish  that  assertion.  Ans. 
lie  was  not  prepared  to,  pn  the  instant. 

Ques,  Were  you  acquainted  with  Dr.  Hollyoke,  of  Salem  ?  Ans.  I  was, 
and  well  knew  his  habits. 

Ques.  How  long  did  he  live,  and  did  he  not  habitually  use  ardent  spirits 
temperately  ?  Ans.  He  used  ardent  spirits  in  small  quantities  habitually, 
a  table  spoonfull  at  a  time,  diluted  with  water,  and  sometimes  with  cider. 
He  also  used  tobacco  habitually.  He  lived  to  be  over  100  years,  but  let  it 
be  remembered  that  Dr.  Hollyoke  did  not  die  of  old  age!  On  a  post  mor- 
tem examination  it  appeared  that  the  heart  was  in  a  healthy  state,  and 
might;  from  all  which  its  appearance  indicated,  have  beat  another  hundred 
years.  But  the  immediate  cause  of  his  death  was  an  affection,  perhaps  the 
duly  one,  which  might  have  been  induced  by  a  moderate,  but  habitual  use 
of  ardent  spirits — a  cancer  in  his  stomach.  He  then  described  the  schir- 
rus  stomach,  which  he  said  was  attributable  to  the  effects  of  alcohol*. 

Ques.  Are  not  the  same  indications  found  in  the  stomach,  as  the  effects 
of  tight  lacing''  Ans.  He  did  not  consider  lacing  as  decidedly  injurious 
to  the  system. 

Ques.  Are  not  tea  and  coffee  injurious  to  the  system  ?  Witness  believed 
they  were,  and  objected  to  their  use  as  a  beverage. 

Ihj  Mr.  Stowell,  one  of  the  committee.  How  much  longer  might  Dr. 
Hollyoke  have  lived,  if  he  had  not  used  ardent  spirits?  Ans.  Thatisadir- 
ficult  question  to  answer. 

Dr.  Pierson  thought  th:it  alcohol,  although  useful  as  a  medicine,  in  some 
cases — could  be  excluded  from  the  materia  medica,  if  the  good  of  the  com- 
munity required   it. 

Dr.  Walter  Changing  of  Boston,  called  to  the  same  point.  He  said 
that  Dr.  Pierson  had  left  very  little  for  him  to  say.  Dr.  C.  then  made  an 
earnest  address  to  the  Committee  in  behalf  of  temperance.  Related  the 
cases  of  four  distillers:  one  of  whom  never  drank  any,  and  described  the 
effects  of  alcohol  upon  the  stomach..  Read  extracts  from  Sir  John  Ross' 
Journal  of  his  voyage  to  the  north  pole,  stating  that  he  brought  home  all 
the  rum  he  carried,  having  persuaded  the  sailors  that  they  could  stand  the 
cold  best  without  its  use.  They  abandoned  its  use  voluntarily,  without 
compulsion. 

On  the  cross  examination  Dr.  C.  was  asked  whether,  on  the  whole,  the 
habitual  use  of  ardent  spirits  shortened  life  in  a  community?  He  believed 
it  did. 

Question  by  Mr.  Hallett.     What    was   the    comparative   use  of  alcohol 

*JYolc.  Dr.  Bowditch  died  of  the  same  disease.  Is  his  memory  to  be  aspersed  by 
intemperate  zeal  ?  His  biographer,  Rev.  Mr.  Young,  says  :  "  The  disease  of  which  Dr. 
JJowditch  died,  was  found  by  a  post  morten  examination  to  be  a  schirrus  in  the  stomach 
a  disease  of  the  same  type  with  that  whichcaused  the  death  of  Napoleon." 


65 

now,  and  during  the  period  of  the  Revolution?  He  could  not  tell  precise- 
ly, but  presumed  it  was  greater  in  the  former  period  than  now. 

Question  by  the  same.  What  was  the  comparative  state  of  longevity 
then  and  now?     He  could  not  tell. 

Q.  Was  not  the  average  life  of  man  in  the  former  period  longer  than 
it  is  now  1 

Ans.  Perhaps  it  might  have  been.  He  had  no  data  to  make  a  com- 
parison. 

Q.  But  do  people  generally  live  to  as  great  an  age  now  as  the  gener- 
ations of  men,  sixty  or  seventy  years  ago  ? 

Ans.     Others  could  judge  as  well  as  he  could  of  that. 

Mr.  Hallelt  then  gave  a  list  of  the  ages  of  the  signers  of  the  Declaration 
of  Independence,  and  inquired  if  an  equal  long  vity  could  be  calculated 
on  the  present  race  of  men  ?  The  Dr.  was  not  prepared  to  answer  the 
question  fuliy,  but  thought  probably  not.  Could  not  say  positively.  He 
thought  the  men  of  the  Revolution  had  something  more  important  to  think 
of  than  ardent  spirits. 

Q,.  Was  not  the  ages  of  the  surviving  soldiers  of  the  Revolution,  the 
pensioners,  much  greater,  relatively,  than  could  be  calculated  on  the  lives 
of  men  of  the  present  day,  under  the  temperance  reform? 

Ans.  Could  not  answer  positively.  He  was  aware  that  the  Revolutionary 
pensioners  had  generally  survived  to  a  great  age,  but  he  did  not  attribute  it 
to  the  use  of  ardent  spirits. 

Mr.  H.  Neither  do  I.  That  is  not  the  inquiry,  but  how  you  can  philo- 
sophically reconcile  their  great  age,  and  known  habits  of  constantly  drink- 
ing spirits,  with  the  theory  that  the  habitual  use  of  spirits  shortens  life,  and 
total  abstinence  lengthens  it? 

Dr.  C,  was  not  aware  that  they  drank  spirits  to  excess. 

Mr.  H.  That  is  not  to  the  point  Doctor.  We  are  on  the  effects  of 
habitual  use  upon  life,  compared  with  total  abstinence.  Is  it  not  notorious 
that  the  men  of  the  Revolution  used  ardents  constantly  in  the  army,  and 
regarded  them  as  a  necessary  of  life? 

Dr.  C.  It  might  have  been  so,  but  he  was  not  aware  of  it,  and  did  not 
fully  comprehend  the  object  of  the  inquiry. 

Mr.  H.  Did  you  never  read  in  Sparks's  Lives,  that  in  a  severe  battle 
General  Putnam,  who  was  almost  perforated  with  bullets,  complained  most 
of  all,  that  a  shot  had  passed  through  his  canteen  and  spilt  all  his  rum, 
which  he  regretted  more  than  the  loss  of  blood  ? 

Dr.  C.  That  fact  had  never  fallen  under  his  observation.  He  was  desir- 
ous of  fully  answering  every  enquiry  which  he  could  comprehend. 

Mr.  H.  The  object  of  the  inquiry  then  is  this — to  arrive  at  the  fact 
whether  luxury,  idleness  and  effeminacy  in  the  present  race  of  men  have 
not  tended  to  shorten  life  much  more  than  the  use  of  ardent  spirits  did  in 
the  men  of  the  Revolution  ? 

Dr.  C.  The  causes  named  undoubtedly  had  that  tendency,  but  he  could 
make  no  comparison  between  the  two  supposed  cases. 

Mr.  H.  But  if  you  justify  this  law,  because  intemperance  affects  life 
and  health,  would  you  not  then  restrain  luxury  and  high  living,  by  force 
laws,  as  well  as  the  sale  and  use  of  ardent  spirits? 

Dr.  C.     That  was  a  matter  for  the  wisdom  of  the  Legislature. 

Mr.  H.  Is  not  the  practice  of  tight  lacing  and  slight  dressing  among 
females,  a  crreat  source  of  consumption  and  other  diseases,  and  the  shorten- 
ing of  life? 

Dr.  C,  did  not  perceive  the  bearing  of  the  question.  Undoubtedly  such 
was  the  fact,  however. 

Mr,  H.     Then  why  not  restrain  these  pra&tices  in   females,  by   law,  in 

9 


66 

order  to  save  them  from  themselves,  as  Dr.  Peirson  said  must  be  done  with 
men,  in  regard  to  alcohol  ? 

Dr.  Channing.  Gentlemen — I  have  no  wish  to  press  this  law.  I  do 
not  wive  any  opinion  upon  it.  I  have  only  spoken  of  the  evils  of  intemper- 
ance, and  these  I  know  to  be  so  great  it  is  impossible  to  exagerate  them. 
You  sir,  (to  Mr.  H.,)  know  them,  and  have  often  described  them  better 
than  I  can. 

Mr.  H.  We  do  not  differ  materially,  Dr.  Channing,  as  to  the  evil,  but 
the  question  now  is  the  remedy.  The  effect  of  this  lata,  not  the  effects  of 
alcohol. 

Mr.  H.  Does  the  habitual  use  of  alcohol  create  a  powerful  thirst  for  the 
liquid  that  contains  it? 

Dr.  C      Undoubtedly. 

Mr.  H.     Is  it  stronger  than  the  natural  thirst  ? 

Dr.  C.     Unquestionably  it  is. 

Mr.  H.  Which  is  the  strongest  appetite  in  man,  hunger  or  thirst — and 
which  is  the  most  excruciating  and  will  soonest  terminate  life? 

Dr.  C.     Thirst,  undoubtedly. 

Mr.  H.  Then  if  hunger  will  break  through  a  stone  wall,  what  will  thirst 
for  ardent  spirits  do  ? 

Dr.  C.     Of  that  you  must  judge. 

Mr.  H.     Which  would  most  promote  thirst,  a  vegetable  or  a  meat  diet  ? 

Dr.  C.     A  meat  diet. 

Mr.  H.  Then  would  it  not  promote  temperance  to  enjoin  by  law  a  veg- 
etable diet  under  the  Graham  reform,  in  order  to  diminish  thirst  ? 

Dr\  C.     It  is  not  my  province  to  decide. 

Mr.  H.     Is  alcohol  in  wine  the  same  as  alcohol  in  ardent  spirits  ? 

Dr.  C.     That  is  a  question  not  fully  settled. 

Mr.  H.  From  your  intercourse  with  those  who  are  sometimes  called  the 
higher  classes,  what  effect  do  you  find  this  law  has  in  restraining  their  ap- 
petites ? 

Ans.  It  was  impossible  for  him  to  say.  Some  thought  it  would  have  a 
good  effect.     He  gave  no  opinion  as  to  the  law  ? 

Mr.  H.  Is  there  not  a  disease  in  medicine  known  as  mental  extrava- 
gance ;  the  effects  of  strong  representations  upon  the  imagination,  called, 
in  the  medical  books,  morbid  afflatus  ? 

Dr.  C.  Such  diseases  were  laid  down  in  medical  books.  He  did  not 
perceive  the  bearing. 

Mr.  H.  May  not  this  mental  disease  in  temperance  societies,  be  the 
origin  of  this  very  law,  rather  than  a  sober  desire  to  do  good  ? 

The  Chairman  did  not  perceive  that  this  question  required  answer. 

Mr.  H.  Doctor,  will  you  please  state,  as  a  medical  man,  what  would 
be  the  tendency  on  the  imagination,  in  contemplating  a  single  subject  as 
the  source  of  all  evil,  and  collecting  and  dwelling  on  extravagant  pictures 
of  those  evils. 

Dr.  C.  It  was  not  a  subject  on  which  he  had  reflected  much.  He  was 
not  now  prepared  to  give  an  opinion,  if  it  were  required  of  him. 

Mr.  H.  Is  it  not  laid  down  in  your  books  that  the  effect  would  be  to 
produce  a  monomania ;  that  is  a  false  reasoning  on  one  subject  which  may 
completely  overcome  the  operation  of  the  judgment  in  that  particular, 
though  sound  in  others  ? 

Dr.  C.     Had  not  seen  it  so  stated.     It  might  be  so. 

Mr.  H.  Are  not  Doctors  Irvin,  Cutter,  and  Good,  acknowledged 
medical  authorities  ? 

Dr.  C.     Unquestionably. 


CI 

Mr.  H.  They  so  state  the  case  very  distinctly.  My  object  in  the  in- 
quiry is  to  apply  it  to  the  monomania  that  has  got  up  this  law.  Mr.  H. 
apologized  to  Dr.  C.  for  detaining  him  so  long,  and  thanked  him  for  his 
candor  and  patience  in  the  examination,  and  the  Committee  adjourned. 

Wednesday,  Feb.  13. 
Dr.  Ebenezer  Aldjsn  of  Randolph,  was  called  to  the  same  point. 
He  stated  that  he  was  present  at  the  examination  of  Drs.  Pier- 
son  and  Channing,  yesterday  afternoon,  and  concurred  in  the  general 
views  expressed  by  those  gentlemen  in  relation  to  the  effects  of  alcohol 
on  the  system.  He  said  there  appeared  to  be  an  hereditary  predispo- 
sition in  some  individuals  to  intemperance — and  that  the  children  of  in- 
temperate parents,  whether  from  this  cause  or  the  force  of  example,  fre- 
quently became  intemperate  themselves.  It  was  often  the  case  that  if  a 
person  should  nearly  succeed  in  overcoming  a  habit  of  intemperance,  the 
sight  of  a  dram-shop  and  exhibition  of  the  decanters,  would  cause  a  re- 
newal of  the  habit.  He  believed  that  the  use  of  ardent  spirits  as  a 
drink,  was  always  pernicious — and  had  been  the  cause  of  much  loss  of 
life  throughout  the  country.  It  was  rightly  called  a  poison  because  it  in- 
toxicates.    It  is  a  diflusable  stimulus,  and  is   never  necessary  in  health. 

He  said  that  in  an  address  delivered  in  1789  or  1790,  by  Dr.  Benjamin 
Rush,  before  a  meeting  of  clergymen,  he  said  that  ministers  should 
preach  not  against  the  abuse,  but  against  the  use  of  ardent  spirit — it 
being  never  necessary  to  health — and  in  cases  of  illness,  it  had  better  be 
applied  externally  than  internally. 

Dr.  A.  stated  that  licenses  had  been  withheld  in  Randolph  about  four 
years — and  since  that  time  the  diminution  in  the  consumption  of  ardent 
spirit  was  very  great  indeed  in  his  view.  There  were,  previous  to  that 
time,  eleven  licensed  retailers  and  three  taverns — the  population  being 
3300.  Now  there  is  only  one  tavern.  There  were  formerly  many  cases 
of  delirium  tremens — but  now  that  disease  is  seldom  met  with  there.  The 
amount  of  drunkenness  is  much  less  than  it  was  a  few  years  ago.  He 
thought  that  restriction  was  an  important  means  in  bringing  about  this 
result.  There  wa&a  great  visible  change  in  the  external  appearance  of 
the  place.  Rum  was  still  used  in  the  town,  but  chiefly  by  foreigners, 
and  in  comparatively  small  quantities.  We  have  a  class  of  persons  who 
use  it  and  will  use  it  secretly.  But  it  is  difficult  to  conceal  it.  Rum  will 
out,  although  those  who  drink  it  will  lie  ! 

Cross-examined,  by  Mr.  H.  What  are  your  means  of  knowing  the  di- 
minution of  the  use  of  spirits  in  Randolph  ?  Ans.  From  his  intercourse 
with  the  people  and  visiting  his  patients. 

Ques.  Is  not  the  disuse  in  families  the  chief  cause  of  the  diminution  ? 
Ans.     It  probably  was. 

Ques.  Is  not  this  the  result  of  moral  influence  and  not  of  law.  A?is. 
It  was  so  far  as  the  habits  of  families  were  concerned,  but  the  law  would 
be  an  assistance  to  the  moral  cause. 

Ques.  Are  intemperance  and  pauperism  cause  and  affect?  Ans. 
They  are  very  closely  allied. 

Ques.  If  there  is  a  diminution  in  the  use  of  ardent  spirits  in  a  town, 
will  pauperism  diminish  proportionably  ?  Ans.  Should  think  it  cer- 
tainly would. 

Ques.  How  is  it  in  Randolph  1  Ans.  Believes  that  pauperism  has 
very  much  diminished  there  since  licenses  were  withheld.  Has  no  doubt 
of  it. 

Ques.  Have  you  as  good  means  of  knowing  the  state  of  pauperism 
there,  as  you  have  of  knowing  that  the  use  of  spirits  has  diminished? 
Ans.     Believes  he  has. 


63 


Ques.  Should  it  turn  out  that  pauperism  has  increased  in  Randolph, 
how  would  it  affect  your  theory  ?     Ans.     Such  a  result  is  not  possible. 

Ques.  On  which  would  you  place  most  reliance,  the  sworn  returns  of 
the  Overseers  of  the  Poor,  or  your  own  opinion  ?  Ans.  Undoubtedly 
the  former. 

Mr.  Hallett  then  produced  the  following  official  returns  of  paupers  in 

Randolph, 


Year. 


1835 
1836 
1837 

1838 


Paupers. 


24 

27 
65 
92 


Expense  of  Poor. 

$1032 

1354 

1750 

1833 


Intemperates. 

4 
o 

33 

61 

Ques.  Do  these  facts  from  official  returns,  support  your  theory  Dr.  ? 
Witness  said  he  could  not  account  for  them  if  correct.  He  must  say 
he  was  puzzled  at  such  a  result,  if  fairly  stated. 

Mr.  H.  You  have  your  own  Overseers'  words  for  it.  It  may  serve  to 
show  that  you  have  been  too  confident  in  your  own  opinions  of  the  mat- 
ter. 

T-he  opposite  counsel  complained  that  .the  witness  was  unfairly  pressed, 
and  the  examination  closed. 

Thomas  Bradley,  of  Tisbury,  on  Martha's  Vineyard,  a  member  of 
the  House,  sworn.  Thinks  the  withholding  licenses  in  Dukes  County 
has  diminished  the  use  of  ardent  spirits.  In  1830,  there  were  3000  gal- 
lons of  ardent  spirits  used  annually  in  this  town.  Thinks  now  there  is 
not  over  300.  The  pauperism  has  remained  about  the  same  since  1831, 
when  licensing  was  stopped.  Being  cross  questioned  as  to  lhe  facilities 
of  getting  it  to  the  Island,  says  it  can  easily  be  brought  there  in  vessels 
and  boats,  or  got  from  those  that  stop  in  the  harbors,  but  the  reason  it  is 
not  used,  the  people  do  not  want  it  as  they  used  to.  Is  in  favor  of  the 
law,  but  does  not  think  it  will  make  any  difference  there. 

Being  asked  if  there  are  no  sales  there  now,  and  whether  it  is  not  ob- 
tained by  those  who  want  it ;  says  they  have  one  place  for  the  old  topers, 
where  they  can  get  it. 

Ques.  Then  you  think  it  necessary  to  have  a  safety  valve  kept  open  ] 
Ans.     I  do. 

Wilkes  Wood  of  Middleboro.ugh,  Plymouth  County,  Judge  of  Pro- 
bate. No  persons  are  licensed  in  Plymouth  County.  As  to  the  compar- 
ative use  since  the  suppression  of  licenses  he  cannot  tell.  Habits  have 
changed.  There  is  not  half  as  much  consumed  now  as  formerly.  Tav- 
ern keepers  frequently  violate  the  law.  Thinks  there  is  less  intoxication 
than  formerly.  There  are  in  our  village  individuals  who  think  it  no  dis- 
grace to  get  drunk. 

Cross-examined.  Are  ardent  spirits  less  used  in  private  families  than 
formerly  ?  Yes,  generally  discontinued.  Q.  Is  that  the  effect  of  law 
or  moral  influence  1     Doubtless  the  latter. 

Q.  t  Is  not  the  discontinuance  of  this  practice  the  great  cause  of  the 
diminution  in  use  1     Probably  it  is. 

Questions  by  Mr.  Hallett.  Is  there  any  law  to  prevent  using  spirits  or 
wines  at  public  dinners?     Ans.     I  never  heard  of  any. 

Ques.  You  say  that  some  people  in  your  town,  consider  it  no  dis- 
grace to  get  drunk.  Do  you  not  know  that  the  last  4th  of  July  400  per- 
sons held  a  political  celebration  in  Middleborough,  and  dined  without 
wines  or  ardents  1  Ans.  I  understood  so,  and  have  no  doubt  of  it,  but 
was  not  present. 

Ques.  Do  you  know  who  delivered  the  oration  on  that  occasion  1 
Ans.     I  understand  you  did. 


69 

Ques.  Do  you  attribute  that  to  moral  influence  or  to  this  law  ?  Ans. 
You  must  judge  for  yourself. 

Ques.  Does  it  not  show  the  extent  of  voluntary  temperance  in  your 
town?     Ans.     I  think  it  does. 

Being  asked,  by  the  remonstrants,  what  had  been  the  effect  upon  pau- 
perism in  his  town,  witness  says — 

Formerly  there  were  from  50  to  GO  paupers.  Now  the  number  is  from 
20  to  30.  Within  12  years  the  number  has  diminished  about  one  half. 
Thinks  there  were  formerly  double  the  number  of  paupers  from  intem- 
perance that  there  are  now. 

Mr.  Hallttt.  What  has  been  the  result  as  to  pauperism  since  this  law 
took  effect  ?  Ans.  Cannot  tell,  should  suppose  pauperism  must  have 
diminished. 

Mr.  II.     Judge  Wood,  do  you  speak  from  personal  knowledge  or  from 

conjecture  ? 

Ans.  I  have  no  positive  knowledge,  but  presume  it  is  so  from  my  gen- 
eral understanding  of  the  case. 

Mr.  H.  You  say  there  was  more  intemperate  pauperism  formerly 
than  now.  But  here  are  the  statistics,  sworn  to  by  the  Overseers  of  the 
Poor  of  Middleborough.  Mr.  H.  then  read  the  following  figures  from 
the  official  pauper  returns. 

Middleborough  in  1635  had  52  paupers,  of  whom  11  were  intemperates. 
In  1836,  45  paupers  and  8  intemperates.  In  1837,  49  paupers  and  17 
intemperates.  In  183S  50  paupers  and  eighteen  intemperates  !  The 
expenses  of  supporting  the  poor  were  in^l835,  81078.  In  183G,  81071. 
In  1639,  81251.  In  1838,  81300.  Showing  an  increase  of  paupers,  in- 
temperates, and  expenses  under  the  prohibitory  law  since  1834. 

Josiaii  Bacon,  of  Sandwich,  a  member  of  the  House,  was  sworn 
and  testified.  It  was  six  years  since  licenses  had  been  granted  in  Sand- 
w  ich.  Withholding  licenses  had  been  beneficial.  No  spirits  were  used 
there  now  but  by  those  who  are  beyond  moral  means.  Does  not  know  of 
any  spirits  being  sold  there  now.  None  was  sold  openly.  There  were 
two  taverns.     Did  not  visit  them  and  did  not  know  if  they  sold. 

On  cross  examination,  says — there  has  been  a  decided  effort  to  ex- 
clude ardent  spirits  from  Sandwich. 

Ques.  Had  it  succeeded,  was  none  brought  there  last  year  ?  Ans. 
There  were  two  importations  in  the  Spring  and  Fall,  25  barrels  in  the 
Spring  and  41  in  the  Fall. 

Ques.  Was  there  any  law  to  prevent  sending  rum  to  Sandwich  in 
barrels?     Ans.     "Not  as  he  knew  of. 

Ques.  Then  what  do  you  rely  upon  to  prevent  the  use  of  the  article, 
if  you  cannot  stop  its  introduction  ?     Pause. 

Ques.  Must  you  not  rely  on  moral  influences  '?  Ans.  Yes.  But  the 
dealers  in  Boston  would  trust  men  with  rum  when  they  would  trust  them 
witli  nothing  else.  Witness  saw  several  barrels  of  the  ruin  brought  from 
Boston,  in  a  store  in  Sandwich,  and  asked  the  man  why  he  did  not  buy 
flour,  Sec.  His  answer  was  that  he  could  not  get  these  articles  on  credit. 
He  said  they  would  trust  him  for  rum  when  they  would  for  nothing  else. 

Mr.  H.  Does  not  that  fact  prove  that  it  is  easier  to  get  rum  to  sell 
than  any  thing  else,  and  yet  you  expect  to  stop  it  by  law  ?  Ans.  It 
might  be  so. 

Mr.  H.  You  say  that  no  spirits  are  used  there  now,  but  by  those  be- 
yond moral  means,  and  yet  Gti  barrels,  which  is  2640  gallons,  were  sent 
there  last  year,  as  you  know  ?  What  proportion  would  that  give  to  your 
inhabitants  ?     Witness  had  not  made  any  estimate. 

Mr.  H.     Would  it  not  not  be  over  half  a  gallon  to  every  man,  woman, 


70 

and  child  in  your  town  1     Arts.     It  would,  compared  to  the  population.* 

Mr.  H.  How  then,  has  withholding  licenses  helped  }rou  1  Ans.  I 
consider  the  law  auxiliary  to  moral  influences. 

Mr.  H.  Do  you  mean  to  say  that  all  your  fellow  citizens  who  used 
that  rum  are  outcasts  beyond  moral  influences  1  Ans.  I  did  not  mean 
to  be  so  understood. 

Mr.  H.     You  said  so. 

Mr.  H.  Would  you  be  in  favor  of  this  law  if  it  permits  wine  to  be 
retailed  by  every  body  1  Ans.  I  should  not.  The  sale  of  wine  would 
be  very  injurious  if  the  new  law  does  not  prohibit  it. 

Mr.  H.  What  is  the  effect  in  your  town,  upon  pauperism  compared 
wilh  former  years  ?  Ans.  Do  not  think  the  expense  of  paupers  has 
been  diminished  in  three  years.  In  Barnstable  County  the  proportion 
of  paupers  is  to  the  inhabitants  as  1  to  101.  Plymouth,  1  to  73.  Suf- 
folk 1  to  25.     Essex,  1  to  38. 

Mr.  II.  Have  you  gained  any  thing  in  pauperism,  in  Sandwich,  by 
force  laws  ?     Ans.     Have  no  means  of  stating  the  facts. 

Mr.  II.  then  showed  the  statistics  of  Sandwich,  as  follows.  In  1835, 
18  paupers,  3  intemperates.  In  1836,22  paupers, 5  intemperates.  In  1837, 
28  paupers,  0  intemperate.  In  1838,  48  paupers,  seventeen  intemper- 
ates. 

Mr,  II.  I  will  ask  you  one  question  Mr.  Bacon,  to  prove  that  ardent 
spirits  are  not  necessary  to  sustain  labor,  which  the  other  side  have  not 
shown.  You  are  an  agent  in  the  Glass  House,  at  Sandwich.  Which 
workmen  best  stand  the  heat  of  the  furnaces,  those  who  drink  spirits  or 
water  ?  Ans.  He  had  taken  some  pains  to  ascertain  that  fact,  and  there 
was  no  question  that  a  glass  blower  could  do  much  more  work,  and  stand 
it  longer  on  water  than  any  other  drink. 

Mr.  Spofford  of  Beverly  sworn. 

What  has  been  the  effect  of  withholding  licenses  in  Beverly.  Very 
great. 

How  many  places  were  there  where  ardent  spirits  were  sold. 

Does  not  know  exactly,  twenty  or  thirty. 

Has  the  consumption  of  ardent  spirits  diminished  in  Beverly  1  Yes, 
very  materially. 

Has  pauperism  diminished  within  the  lastyear? 

It  has  increased.  Many  paupers  have  been  thrown  upon  the  town 
from  other  places. 

During  the  last  year,  has  the  use  of  ardent  spirits  increased  or  dimin- 
ished 1 

Diminished.  During  the  last  four  years  there  were  nine  commitments 
to  the  alms-house.     During  the  previous  four  years  there  were  twenty. 

Mr.  Clapp  of  Dorchester,  sworn. 

Are  paupers  in  Dorchester  supplied  with  ardent  spirits  1 

No.     They  formerly  were. 

How  many  licenses  were  formerly  granted  in  the  town  1 

Believes  seven  or  eight. 

What  has  been  the  increase  or  diminution  of  pauperism  in  the  town 
within  the  last  few  years  1 

Believes  there  is  little,  if  any,  variation.  Thinks  there  are  two  or 
three  less  paupers  than  there  were  a  few  years  since. 

What  proportion  of  the  paupers  become  so  by  intemperance  1 

Two  thirds  to  three  quarters.  Till  the  year  1836  rum  was  bought  by 
the  hogshead  for   the  use  of  the  paupers.     Since  that  time  its  use  has 


[Note.     The  population  in  1830  was  3,367.    This  would  give  over  five  pints] 


71 

been  discontinued,  except  in  the  year  1836,  when  the  overseers  hough' 
one  barrel,  which  they  furnished  them  to  taper  off  with. 

Do  the  paupers  ever  get  ardent  spirits  1 

Sometimes  a  jug  is  found,  which  the  keeper  cracks.  Thinks  but  very 
little  is  used  by  them. 

Which  is  the  most  effectual  in  preventing  drunkenness,  the  law  or 
moral  suasion  1 

Thinks  moral  suasion  will  have  little  or  no  effect  on  the  drunkard. 

Being  asked  how  men  can  be  effectually  kept  from  rum  who  hanker 
after  it  ]  Says  it  could  only  be  done  by  shutting  them  all  up  and  having 
a  high  wall,  and  then  they  would  get  it  somehow. 

Mr.  H.  here  remarked  that  Dorchester  was  one  of  the  towns  of  Nor- 
folk, represented  by  Judge  Leland  as  a  rum  town,  where  it  was  sold 
pretty  freely.  But  that  town  had  improved  as  to  its  pauperism.  In  1837, 
it  had  55  paupers,  and  37  intemperates.  In  1838,  45  paupers  and  30 
intemperates. 

Thursday,  Feb.  14. 

Mr.  Bliss  moved  that  it  is  inexpedient  to  hear  any  more  evidence  as 
to  the  evils  of  intemperance. 

Mr.  Crosby  (Agent  of  the  Massachusetts  Temperance  Union,)  hoped 
the  Committee  would  not  adopt  that  course,  to  exclude  their  evidence. 

Mr.  Bliss.  It  is  for  the  Committee  and  not  the  Counsel,  to  decide  this 
matter.  Much  time  had  been  spent  upon  matters  about  which  there  was 
no  dispute. 

Mr.  Bollcs  wanted  to  put  in  evidence  as  to  the  effects  of  intemperance 
upon  man  as  a  social  being. 

Mr.  Hallett  said  that  after  his  withdrawal  on  the  part  of  the  Memorial 
of  H.  G.  Otis  and  others,  he  had  suggested  no  limit  as  to  the  course  of 
the  other  side,  though  they  had  gone  into  all  manner  of  inquiries.  Nor 
should  he  now.  He  had  since  been  retained  for  the  Memorial  of  Samuel 
Earle,  and  1100  others,  for  whom  he  now  appeared,  and  had  confined 
himself  to  cross  questions,  in  order  to  bring  out  the  whole  truth. 

Inquiry  was  made  as  to  the  appearance  for  other  Memorials.  Rev. 
Mr.  Whittemore  said  he  appeared  with  four  others  in  behalf  of  a  Con- 
vention of  Middlesex  County.  Rev.  Mr.  Cobb  was  also  an  agent  for 
the  same  Convention,  and  wished  to  be  heard.  Joseph  Harrington, 
Esq.  appeared  for  the  Roxbury  Society. 

Mr.  Bliss's  motion  then  prevailed  by  a  vote  of  7  to  3.  [Showing  only 
ten  out  of  35  of  the  Committee  present.  This  was  quite  the  average 
attendance.] 

Mr.  Stoioell  moved  to  re-consider  the  above  vote,  and  it  was  re-consid- 
ered, and 

Moses  Grant  of  Boston  was  called  by  remonstrants.  Is  Chair- 
man of  the  Committees'  on  the  Houses  of  Industry,  Reformation  and 
Correction.  In  1838,  405  males  were  committed  to  the  House  of  Cor- 
rection— 190  were  common  drunkards;  319  females,  152  common  drunk- 
ards. Of  those  committed  by  the  Police  Court,  19  out  of  20  have  the 
delirium  tremens.  In  ten  years,  7588  persons  had  been  committed  to 
the  House  of  Correction. 

Deacon  Grant  read  at  considerable  length,  statements  from  a  pamph- 
let of  the  statistics  of  the  Houses  of  Correction,  Reformation,  &c  Ho 
had  been  30  years  connected  with  these  institutions,  and  should  like  to 
relate  a  few  affecting  stories,  which  he  did.  He  said  he  knew  of  a  case 
where  a  man  in  Lynn  had  sent  his  hoys  to  Salem  to  get  ardent  spirits. 
Could  get  none  in  Lynn.  He  spoke  feelingly  upon  the  evils  of  intemper- 
ance in  society  and  families,  and  read  several  Police   Reports  from  the 


72 

Boston  Morning  Post,  particularly  one  of  June  26,  1838,  "  I'll  not  march 
through  Coventry,  that's  flat."  Does  not  know  that  it  is  true,  but  has  no 
doubt  of  it.  He  said,  our  Police  reports  do  trifle  with  misery  and  crime. 
He  knew  a  case  of  children  coming  to  a  Primary  School,  intoxicated. 
It  was  the  fault  of  their  parents,  not  the  Instructress.  He  could  not  but 
think  that  the  new  law  would  have  a  good  effect  if  enforced.  As  to  its 
oppression  upon  the  poor,  lie  had  conversed  with  drunkards  who  desire 
the  law  to  be  supported.  Many  persons  came  to  him  to  know  if  the  law 
would  stand.     They  expect  more  than  it  will  effect. 

They  did  not  assist  intemperate  persons  oul  of  the  Alms-house.  But 
their  families  were  aided.  He  had  no  means  of  tracing  crime  and  pov- 
erty to  intemperance,  only  by  general  statements  and  observation.  Could 
not  undertake  to  speak  from  investigation  in  each  case.  The  estimates 
were  general.  There  were  more  facilities  for  getting  spirits  in  Suffolk 
than  in  any  other  County,  and  there  ought  to  be  a  greater  increase  of 
pauperism  there  than  in  any  other  County. 

[Statistics,  however  show  less  increase,  than  in  most  of  the  prohibiting 
Counties.] 

Rev.  Jared  Curtis.  Has  been  13  years  Chaplain  of  the  State  Prison. 
In  all  the  inquiries  he  has  made  of  prisoners,  three  fourths  have  stated 
that  they  owe  their  commission  of  crime  to  the  use  of  liquor.  About 
one  half  perhaps,  committed  crime  under  the  influence  of  liquor.  He 
does  not  pretend  to  be  numerically  correct,  but  substantially  so.  The 
report  of  Massachusetts  State  Prison  1833,  shows  that  out  of  119  con- 
victs, 100  say  they  owe  their  imprisonment  to  this  beastly  vice.  Report 
of  1837,  out  of  313  convicts  in  the  prison,  150  traced  their  crimes  to 
drink;  19  used  none  ;  10-1  temperate  drinkers;  190  intemperate.  Re- 
port of  183S — 116  admitted.  Examined  1 14  ;  5  used  none  ;  44  temper- 
ate drinkers;  62  intemperate;  59  say,  led  to  crime  by  drink.  Believes 
the  prisoners  might  be  reformed,  if  it  were  not  for  intemperance.  Last 
year  a  person  came  back  ;  wished  to  get  into  prison  again  to  avoid  temp- 
tation to  drink.  On  cross-examination,  says  he  was  simple,  an  idiot. 
He  stole  a  horse  to  get  back. 

Cross-examined.  There  has  been  an  increase  of  commitments  the  last 
year.  In  1837,  291.  In  1833,  302.  The  whole  class  of  higher  crim- 
inals-are temperate  men.  Forgers,  burglars,  pickpockets,  and  in  crimes 
that  require  shrewdness,  the  convicts  are  usually  total  abstinence  men. 
"Witness  attributes  the  increase  of  crime  under  the  new  law,  to  the  in- 
creased drinking  from  principle,  or  opposition  to  the  law. 

Being  asked  his  means  of  tracing  crime  to  intemperance,  says  he  has 
no  other  than  what  the  convicts  tell  him.    . 

Mr.  H.  Do  they  not  consider  it  a  fair  excuse  to  attribute  their  crimes 
to  drink  1  Arts.  Unquestionably.  They  are  desirous  of  palliating  their 
crimes  by  ascribing  them  to  intemperance. 

Ques.  Are  you  not  liable  to  be  misled  from  that  cause?  Ans.  I 
think  so.     They  often  use  it"  as  a  palliation. 

Ques.  Can  you  tell  how  much  of  intemperance  is  the  result  of  pre- 
vious crime  and  disgrace  or  bad  conduct,  as  well  as  the  reverse  ?  Ans. 
Have  no  means  of  arriving  at  a  result. 

Ques.  But  may  not  crime  produce  intemperance  as  often  as  the  re- 
verse, and  can  you  show  it  does  not  ?  Ans.  Should  think  it  did  not, 
but  undoubtedly  they  are  mutual  cause  and  effect. 

Ques.  You  speak  of  intemperance  as  a  beastly  vice.  Do  you  know 
of  any  beast  that  habitually  injures  itself  by  excessive  drinking?  Ans. 
I  do  not. 


73 

Mr.  H.  Then  is  it  not  unjust  to  irrational  animals  to  call  drunkenness 
a  beastly  vice  ?     Mr.  C.     It  had  never  occurred  to  him  in  that  light. 

Ques.  What  means  do  the  convicts  in  prison  resort  to,  to  get  intoxi- 
cating drink  ?  Ans.  They  used  to  resort  to  various  expedients.  It  is 
almost  impossible  to  exclude  it,  but  believe  it  is  done  now.  Some  time  ago 
it  was  found  that  they  would  keep  their  allowance  of  molasses  and  yeast 
for  bread,  out  .of  which  they  brewed  stuff  that  would  intoxicate.  This 
was  put  a  stop  to. 

Rev.  Dr.  Tucrerman,  of  Boston,  resident  minister  for  the  poor,  was 
called  to  testify  as  to  the  effects  of  intemperance  upon  social  affections. 
These  he  described  in  an  eloquent  and  impressive  manner,  and  with  deep 
sincerity.  If  the  dram  shops  could  be  closed  he  would  willingly  take 
care  of  the  poor.  Being  asked  as  to  the  benefit  of  laws  designed  to  aid 
temperance  among  the  poor,  says — I  hardly  know  how  to  answer.  Moral 
persuasion  will  best  succeed  with  the  better  sort,  but  there  are  cases  it 
cannot  reach.  When  I  go  to  a  poor  man,  whose  children  are  in  rags  and 
filth,  I  cannot  use  moral  suasion  with  him  under  this  hankering  thirst. — 
There  are  men  far  beyond  the  reach  of  moral  influences. 

Being  asked  if  any  law  could  restrain  the  hankering  of  such  men,  says 
only  by  making  the  gratification  impossible. 

Being  asked  if  either  law  or  moral  suasion  could  reform  the  drunkards, 
witness  says  a  few  are  recovered,  but  very  few. 

The  counsel  for  remonstrants  asked  his  opinion  of  the  law  of  '38? 
Ans.  I  am  not  willing  to  hazard  a  judgment,  as  to  the  law.  They  also 
asked,  would  the  poor  resist  the  law  ?  Ans.  I  doubt  not  the  poor 
would  readily  submit.  The  difficulty  would  be  between  the  City  Govern- 
ment and  the  sellers.  Ques.  Would  it  be  oppression  to  deprive  the 
poor  of  the  use  of  ardent  spirits  ?  Ans.  Oppression  !  O  !  no  !  it  would 
be  a  mercy. 

Cross-examined  by  Mr.  Hallett.  Do  you  mean  to  say  Dr.  Tuckerman, 
that  the  poor  need  more  restraint  upon  their  appetites  than  the  rich  ? 
Ans.     By  no  means.     I  do  not  wish  to  be  so  understood. 

Ques.  Do  you  not  find  more  of  the  virtues  of  self-denial  and  patient 
endurance  in  the  poor  than  in  the  rich?  Ans.  Undoubtedly.  1  freely 
admit  the  virtues  of  the  poor. 

Ques.  Is  it  not  unjust  then,  to  attribute  so  much  of  poverty  to  vice 
and  intemperance,  and  is  not  poverty  inseparable  from  society  without 
intemperance  ?  Ans.  Surely  there  is  a  great  amount  of  poverty  arising 
from  circumstances  in  God's  providence. 

Ques.  Then  you  would  not  imply  that  poverty  involves  crime,  but 
may  arise  from  virtuous  misfortune?  Ans.  Unquestionably.  I  would 
by  no  means  be  understood  otherwise. 

Ques.  You  spoke  of  oppression.  Did  you  mean  to  say  that  a  law 
which  should  deny  an  indulgence  to  the  poor  in  proportion  to  their 
means,  and  grant  it  to  the  rich,  was  not  an  oppressive  and  unjust  law  ? 
Ans.  I  do  not  mean  to  give  any  opinion  as  to  the  law  in  question.  I 
only  speak  of  the  evils  of  intemperance  which  cannot  be  too  deeply  de- 
plored. 

Mr.  H.  I  only  asked  the  question,  Sir,  to  prevent  a  wrong  inference 
from  your  answer  to  inquiries  on  the  other  side.  No  one  who  knows 
your  disinterested  labors  in  the  cause  of  humanity,  can  doubt  your  sin- 
cerity or  fail  to  respect  the  purity  of  your  motives,  as  I  do. 

Ashacl  Huntington  of  Salem,    District  Attorney  for  the    Counties 

of    Essex    and    Middlesex,    called   and  sworn.      No   retailer's    licenses 

had  been  granted  in  Essex   since   183G,  except   a   few  retailers  of  wine. 

There  were  great  difficulties  previous   to  1836.     There  have  been  prose- 

10 


74 

cutions  formerly,  got  up  by  the  drinkers.  Now  they  are  got  up  by  the 
friends  of  temperance.  In  Salem  there  were  32  licenses  last  year.  As 
to  enforcing  the  law,  I  am  satisfied  there  will  be  no  difficulty.  I  think 
the  people  are  satisfied  that  it  is  better  that  licenses  should  be  withheld. 
Have  bad  no  considerable  difficulty  in  enforcing  the  former  law  and  ap- 
prehend none  in  this.  Have  had  as  practical  experiment  of  enforcing 
the  law  in  Essex.  After  licenses  were  withheld  in  '36,  the  friends  of 
temperance  determined  to  enforce  the  prohibitory  law.  Indictments 
were  found,  the  parties  would  not  contend,  and  were  let  off  on  paying 
costs  upon  condition  they  did  not  offend  again.  This  put  a  stop  to  the 
sale.  There  were  less  prosecutions  in  Essex  than  in  Middlesex,  where 
licenses  had  been  granted.  In  the  latter  the  fines  and  prosecutions 
amounted  to  $1600;  costs  to  $969.  In  Essex,  fines  $375.     Costs  $1200. 

The  Court  has  decided  that  the  new  law  repealed  the  old  law  as  to  re- 
tailers. Whether  it  does  not  restrict  wine  at  retail  he  is  not  prepared  to 
say.  It  may  be  it  does  not.  But  he  thinks  the  old  law  remains  as  to 
wine.  As  to  enforcing  this  law,  it  can  be  done  wherever  there  is  a  gen- 
eral disposition  to  enforce  it.  Otherwise  it  might  be  difficult.  In  the 
first  place  he  relied  on  those  favorable  to  the  law  to  enforce  it,  and  next 
upon  the  trade,  who  are  very  kind  in  furnishing  the  best  evidence.  They 
understand  who  the  customers  are,  and  if  one  is  prosecuted  and  can't  sell, 
he  likes  to  see  others  stopped  as  well  as  himself,  and  will  furnish  the 
means  to  do  it. 

In  Salem  there  were  555  paupers,  500  of  them  from  intemperance. 
The  temperance  reform  was  showing  itself  in  Essex.  There  was  a  fall- 
ing off  in  Salem  lately  in  prosecutions.  The  fines  now  go  to  the  Coun- 
ties and  the  costs  to  the  Commonwealth.  If  the  fines  were  paid  to  the 
Commonwealth,  the  State  would  make  money  by  the  prosecutions.  The 
fines  exceed  the  costs.*  Most  of  the  criminal  prosecutions  arose  from 
ardent  spirits.  Of  250  criminal  prosecutions  in  Salem  in  1836,  S5  were 
common  drunkards.  Of  30  in  1838,  25  were  common  drunkards. 

Cross-examined.  There  had  been  no  prosecutions  under  the  law  of 
'38.  The  prosecutions  under  the  former  law  were  most  numerous  in 
Newburyport,  probably  60  or  70  dealers.  Also  in  Gloucester,  as  he  un- 
derstood. 

Mr.  H.  What  is  the  proportion  of  decrease  of  pauperism  to  the  de- 
crease of  licenses  in  the  towns  1  Ans.  The  decrease  of  pauperism 
must  be  in  proportion  to  the  prohibition  of  licenses. 

Mr.  H.     Do  you  know  that  as  a  fact  1     Ans.     I  have   no   doubt  of  it. 

Mr.  H.  Can  you  show  it  in  any  town  in  Essex  ?  Ans.  I  have  not 
the  figures.  Perhaps  in  many  towns  the  effect  of  prohibition  has  not 
yet  appeared,  as  it  respects  pauperism.     There  has  not  been  time. 

Mr.  H.  Ought  it  not  to  appear  in  three  years  1  Ans.  Should  think 
it  would. 

Mr.  H.  Will  you  name  a  town  in  which  this  result  ought  to  have  ap- 
peared by  this  time  ?  Ans.  I  would  take  the  town  of  Beverly.  The 
effect  should  be  felt  there. 

Mr.  H.  But  suppose  pauperism  has  increased  there,  how  would  it 
effect  your  theory  ?     Ans.     I  presume  it  will  not  prove  so. 

Mr.  H.  then  produced  the  official  returns  of  Beverly  as  follows.  In 
1835,  paupers  45,  intemperate  23.  In  1836,  paupers  81,  intemperate 
30.     In  1837,  paupers  95,  intemperate  71  ;  of  whom  16  were  foreigners. 

"Upon  this  hint,  the  Legislature  subsequently  passed  an  act  that  the  fines  recovered 
in  all  prosecutions,  shall  be  paid  into  the  State  Treasury.  The  county  balances,  will 
now  fall  upon  the  counties  instead  of  the  State  Treasury  as  heretofore. 


In  1838,  paupers  82,  intemperate  61 ;  3  foreigners.  Deducting  the 
foreigners,  there  were  79  paupers,  and  55  intemperates  in  '37,  and  79 
paupers  and  58  intemperates  in  '38,  showing  an  actual  increase  instead 
of  decrease.  In  1835  and  '36,  the  pauper  expenses  in  Beverly  were 
$1200.     In  1837,  81669.     In  1838,  81769. 

Mr.  Huntington  could  not  explain  these  results  satisfactorily.  Ther- 
must  be  other  causes  he  thought  operating. 

[It  was  also  shown  by  Mr.  Hallett,  that  in  Newburyport  and  Glouces 
ter  where  Mr.  Huntington  testified  there  was  the  greatest  sale,  there  had 
been  a  decrease  in  the  number  of  paupers.] 

Witness  said  there  had  been  a  decrease  of  crime  in  Essex,  full  one  third 
within  three  years.*  He  did  not  expect  so  much  from  this  law  as  some 
did.  He  valued  it  chiefly  as  a  moral  expression  of  the  Legislature 
against  the  use  of  alcohol. 

Mr.  Hallett.  Why  not  then  be  content  with  a  resolution  to  that  effect, 
as  against  the  Convent  rioters  ?  Witness,  however,  thought  it  was  best 
to  have  the  force  of  the  law  on  the  side  of  Temperance.  He  said  he 
believed  this  law  to  be,  on  the  whole,  a  sound  and  a  wholesome  law — a 
law  which  expressed  the  "  sober  second  thought  "  of  the  people  of  this 
Commonwealth,  that  ardent  spirits  were  not  necessary  for  a  man  in  a 
state  of  health,  but  on  the  contrary,  highly  detrimental.  He  regarded 
it  not  so  much  for  its  effect  in  putting  a  stop  to  the  traffic  in  ardent  spirits, 
as  for  exerting1  a  moral  influence  of  the  highest  importance,  on  the  peo- 
ple of  the  State.  The  law  no  longer  recognized  the  deceiving  doctrine 
that  ardent  spirit  is  a  benefit  to  the  community — a  public  good.  He 
would  rather  there  would  be  no  law,  than  that  a  law  of  the  Common- 
wealth should  teach  such  an  egregious  falsehood.  He  thought  that  the 
traffic  in  ardent  spirits  could  not  be  regulated.  If  licenses  were  granted, 
more  people  would  engage  in  the  traffic  without  licenses  than  with — but 
by  prohibiting  the  traffic,  it  would  be  driven  into  corners  and  secret 
places,  and  it  would  be  consequently  much  diminished.  We  shall  then 
no  longer  find  respectable  people  among  either  the  buyers  or  sellers. 

On  further  questions,  witness  says  that  the  greatest  argument  against 
the  new  law,  was  that  it  did  not  restrict  wines.  In  regard  to  the  licen- 
sing of  Apothecaries,  to  sell  for  medicine,  it  was  liable  to  abuse,  and 
would  be  likely  to  increase  that  sort  of  sickness.  He  thought  it  a  fault 
in  the  law.    ' 

Being  asked  how  he  could  convict  an  Apothecary  for  selling  to  a  man 
Avho  asked  for  medicine  and  used  it  for  beverage ;  he  admitted  it  must 
be  a  question  of  intent  in  the  seller,  and  not  the  act  of  the  buyer,  to  de- 
termine the  guilt.     Of  course  difficult  to  prove  to  a  Jury. 

Being  questioned  as  to  the  objects  of  the  Temperance  Conventions 
held  during  the  session,  one  of  which  had  just  closed  in  Boston  ;  he  de- 
nied that  they  were  designed  to  control  the  Legislature  as  to  this  law,  but 
admitted  that  no  such  Conventions  had  been  held  here,  simultaneously 
with  the  Legislature,  until  this  law  began  to  be  pressed.  A  great  many 
members  of  the  House  were  members  of  the  Convention.  The  Conven- 
tion resolved  to  sustain  the  law.  Witness  himself  offered  resolutions  in 
the  Temperance  Convention,  declaring  that  it  would  be  immoral  to  li- 
cense the  sale,  and  that  the  Legislature  would  be  false  to  their  trust,  or 
to  that  effect,  if  they  repealed  the  law.     They  were  opposed  by  Profes- 

*  The  District  Attorney  committed  an  egregious  error  in  this  statement.  The  official 
returns  of  crime  in  Essex  County  show,  that  in  1835,  the  whole  number  of  commit- 
ments to  Jails,  &c,  for  crime,  was  352.  In  1836,  357.  In  1837,  4Q6.  In  1838,  45:'. 
In  Middlesex,  where  licenses  were  granted,  commitments  for  crime  in  1835,  171.  In 
1836, 106.     In  1837,  142.     In  1838,  124. 


76 

sor  Greenleaf,  on  the  ground  that  they  seemed  to  dictate  to  the  Legisla- 
ture, and  were  liable  to  the  charge  of  intermeddling  ;  but  neither  witness 
nor  the  Convention  so  understood  them,  and  they  were,  adopted.  Mr. 
Huntington  here  stated  that  his  engagements  required  him  to  leave  town, 
and  was  released  from  further  cross  questions. 

Joseph  Tripp,  of  New  Fairhaven,  a  member  of  the  House.  Knew 
of  no  tipling  shop  in  Fairhaven,  but  could  not  say  it  was  not  sold  there. 
In  New  Bedford  a  great  deal  was  sold. 

Mr.  Baohelder  of  Lynn.  Should  think  the  use  in  that  town  had 
had  diminished  three  quarters,  but  they  get  it  yet  as  much  as  they  want. 
There  was  much  opposition  to  the  law.  The  Temperance  cause  had 
produced  a  very  great  change  for  the  better.  He  thought  it  had  im- 
proved the  paupers.  The  practical  results  have  been  favorable  in  re- 
fusing licenses. 

Cross  examined.  The  Apothecaries  selling,  under  the  new  law,  might 
lead  to  great  mischief.  The  journeymen  could  send  for  a  pint  or  so,  for 
medicine,  and  drink  it  in  their  shops.  If  wine  was  free,  it  would  be  very 
injurious  to  temperance.  Thought  there  was  so  much  opposition,  it  was 
going  back. 

Mr.  Hallctt.  Deacon  Grant  stated,  that  a  man  in  Lynn  had  to  send  to 
Salem  to  get  rum.  Is  it  so  1  Ans.  Any  man  who  loved  it  could  get  rum 
in  Lynn  without  going  to  Salem. 

Mr.  Macomber,  of  New  Bedford.  The  new  rum  formerly  came  from 
Rhode  Island  to  New  Bedford.  It  never  came  from  Boston.  There 
was  undoubtedly  a  great  quantity  came  to  New  Bedford,  and  was  sold 
there,  but  he  could. not  state  the  particulars. 

Capt.  Taber,  sworn.  Resides  in  New  Bedford.  Is  connected  with 
four  regular  packets,  running  between  Boston  and  New  Bedford.  Has 
examined  their  freight  books,  and  finds  this  result.  In  1S3G  they  carried 
to  New  Bedford  from  Boston,  1391  barrels,  45  hogsheads,  and  35  pipes 
of  ardent  spirits.  In  1837,1233  barrels,  37  hogsheads,  and  39  pipes. 
In  1838,  1072  barrels,  27  hogsheads,  and  9  pipes. 

Rum  was  brought  from  Rhode  Island  formerly,  but  he  understood  but 
little  came  that  way  now.  As  to  what  is  done  with  the  rum  his  vessels 
carry  to  New  Bedford,  the  principal  part  is  consumed  there.  New  Bed- 
ford also  supplies  Rochester,  Wareham,  and  other  towns.  Is  not  ac- 
quainted with  all  the  modes  of  supplying  customers  and  evading  the  law. 
One  individual  carts  it  round  as  milk,  in  milk  carts.  Carries  on  a  large 
business  in  this  way.  One  of  the  Committee  asked  the  name.  Witness 
says  it  is  Eleazer  Phillips.  Very  few  are  considered  respectable  who 
deal  in  it.  Should  think  the  effect  had  been  to  change  the  tra.fic  from 
respectable  to  disreputable  hands.  Should  think  on  the  whole,  the  effect 
was  good  as  to  the  law,  and  must  promote  temperance.  Is  himself  a 
temperance  man. 

Cross-examined  by  Mr.  Hallett.  Says  the  whale  ships  never  carry  out 
spirits,  and  knows  of  none  exported.  All  that  comes  there  must  be  con- 
sumed or  sold  in  New  Bedford  and  adjoining  towns.  Should  think  his 
own  packets  did  about  three  quarters  of  the  freighting  between  Boston 
and  New  Bedford.  There  is  another  regular  packet,  not  in  his  concern, 
besides  transient  vessels  and  coasters.  In  1837  witnesses'  Company 
voted  not  to  carry  any  spirits.  This  sent  it  all  to  the  other  concern, 
which  continued  to  carry  it.  His  concern  then  rescinded  their  vote, 
and  began  again.  Supposed  that  might  be  the  reason  his  vessels  did  not 
now  carry  as  much  as  formerly. 

Mr.  H.  also  questioned  witness  as  to  wine  casks,  which  were  sent  by 
his  vessels  from  New  Bedford  to  Boston  empty,  and  returned  filled.     He 


77 

says  he  does  not  include  these  in  his  statement.  There  were  37  or  38 
such  casks  in  1835.  Now  there  are  from  40  to  50,  annually  carried. 
He  cannot  tell  their  contents.  They  may  have  been  spirits  in  wine 
casks.  Being  asked  as  to  transportation  by  land,  empty  jugs  and  kegs 
sent  in  baggage  wagons,  &c,  says  he  cannot  state,  but  no  doubt  a  great 
deal  is  sent  in  that  way. 

Mr.  H.  You  say  no  respectable  persons  deal  in  the  article.  Is  it 
thought  respectable  for  temperance  men  to  receive  the  profits  of freight- 
ing the  article?     Witness  had  no  opinion  to  give. 

Mr.  Hallett.  Is  not  rum  &c,  brought  into  New  Bedford  from  New 
York  1     Ans.     Does  not  know  the  fact,  but  presumes  it  is  so. 

Mr.  H.  Do  you  not  know  of  a  particular  instance  in  which  rum  was 
brought  into  New  Bedford  from  New  York,  which  a  person  in  New  Bed- 
ford was  charged  with  having  procured  on  credit,  by  false  pretences  1 
Ans.  He  did  know  something  of  a  quantity  of  rum  under  such  circum- 
stances, brought  from  New  York  to  Rochester  and  carted  to  New  Bed- 
ford by  night. 

Mr.  II.     To  whom  was  that  rum  brought  1 

Mr.  Stowell,  of  New  Bedford,  one  of  the  Committee,  objected  to  the 
question,  as  irrelevant. 

31r.  Hallett.  The  gentleman  from  New  Bedford,  (Mr.  Stowell,)  was 
the  member  who  insisted  on  the  names  of  the  customers  of  the  dealers 
being  given,  and  I  hope  Mr.  Chairman,  he  will  not  object  to  the  applica- 
tion of  his  own  rule  to  himself. 

Mr.  Walcott  (Chairman  of  the  Committee.)  It  is  true  that  the  gentle- 
man made  the  motion  requiring  the  names,  and  it  appeared  to  him  tho 
question  was  a  proper  one,  under  the  rule. 

The  witness  then  said  the  person  was  Eleazer  Phillips,  the  same  who 
sent  out  the  milk  carts. 

Mr.  H.  Has  he  been  demanded  by  the  Executive  of  ?^ew  York,  and 
delivered  up  by  Governor  Everett,  on  a  charge  of  obtaining  the  rum  by 
false  pretences  1     Ans.     Such  is  the  fact. 

Mr.  II.  Who  went  on  to  New  York  with  Phillips  and  got  him  bailed? 

Mr.  Stoicell  here  interposed  and  said,  Mr.  Mc'Nevers  was  his  bail. 

Mr.  Hallett  to  Mr.  Stowell.     Was  it  not  Mr.  Stowell  1     No  answer. 

[After  the  examination  of  Mr.  Macomber  and  Mr.  Bachelder,  (which 
is  given  before  that  of  Capt.  Taber,  to  preserve  the  connexion,)  and  as 
the  session  of  the  Committee  was  drawing  to  a  close,  Mr.  Stowell  rose  and 
desired  to  make  an  explanation.  He  said  a  question  had  been  proposed 
to  the  witness  (Capt.  Taber,)  as  to  his,  (Mr.  Stowell's,)  connexion  with 
the  procuring  of  bail  for  a  Mr.  Phillips  in  New  Bedford.  The  object 
was  to  cast  obloquy  upon  him,  Mr.  Stowell,  and  he  wished  to  explain  the 
circumstances.  Mr.  Phillips  is  a  near  relative  of  my  wife.  He  was  in- 
dicted, in  connexion  with  one  Gurney,  for  obtaining  goods  in  New  York, 
under  false  pretences,  among  which  was  the  rum  spoken  of.  Gurney 
had  bought  goods  in  New  York  for  two  years,  and  sold  to  Phillips,  who 
had  paid  for  them.  Gurney's  creditors  came  to  New  Bedford,  and  bein^ 
unable  to  obtain  their  demands  in  a  civil  suit,  had  him  arrested  as  a 
swindler,  and  Mr.  Phillips  as  an  accomplice,  who  had  property.  Gurney 
agreed  to  turn  States  evidence  against  him.  At  the  request  of  the  friends 
of  Mr.  Phillips,  and  of  my  father-in-law,  I  went  on  to  New  York  with 
Mr.  Phillips,  and  procured  bail  for  him  as  I  had  a  fight  to  do.  [It  after- 
wards appeared  that  Mr.  Stowell  gave  the  bail  in  New  York,  (a  citizen 
being  required)  a  check  on  or  of  his  father-in-law  for  the  whole  amount 
of  the  bail  bond,  to  save  the  bail  harmless.]     " 

Mr.  Stowell  concluded  his   statement  by  repeating  that  he  considered 


78 

the  questions  as  to  Mr.  Phillips,  designed  to  cast  odium  upon  him,  in  re- 
taliation for  having  required  the  names  of  the  purchasers  in  New  Bed- 
ford, and  that  it  had  nothing  to  do  with  the  case. 

Mr.  Hallctt  considered  it  directly  in  point  and  very  material  to  the  in- 
quiry. The  Memorialists  had  been  trying  to  show,  that  notwithstanding 
the  prohibition  law,  spirits  were  freely  obtained  in  New  Bedford,  and  this 
evidence  had  been  excluded  on  the  motion  of  Mr.  Stowell  himself,  unless 
names  were  given.  It  now  turns  out  that  Mr.  S.  was  himself  in  possession 
of  the  fact  that  a  large  quantity  of  rum  had  been  surreptitiously  brought 
to  New  Bedford,  in  the  night,  by  one  of  his  own  relatives,  the  largest  deal- 
er in  the  place  ;  and  yet  he  concealed  this  fact  from  the  Committee 
while  suppressing  other  evidence  to  show  the  sending  of  rum  to  New 
Bedford.  My  object,  said  Mr.  II.  was  to  let  the  truth  cast  odium  where 
it  might;  and  but  for  this  inquiry  of  Capt.  Taber,  this  fact  would  have 
been  concealed.  I  have  no  wish  to  injure  the  gentleman,  and  do  not 
deny  his  right  to  procure  bail  for  his  relative  of  the  mills,  cart,  but  I 
would  merely  suggest  for  his  reflection,  lhat  if  he  is  willing  to  uphold  and 
stand  bail  for  those  who  obtain  rum  by  fraudulent  means,  he  perhaps, 
ought  to  be  a  little  more  charitable  to  those  who  sell  it  lawfully. 

Mr.  Cros.b.y  now  put  in  a  statement  as  to  the  relative  amount  of 
costs  and  lines  in  the  license  prosecutions  ut.tler  the  old  law.  In  two 
years  there  had  bean  6-15  prosecutions,  and  401  convictions.  Fines 
$8093.     Costs  $7670. 

Rev.  Mit.  Cobb,  for  the  Middlesex  Temperance  Society,  made  an  ad- 
dress to  the  Committee  of  considerable  length,  for  the  law. 

Judge  Leland  of  Roxbury  desired  to  explain  his  testimony.  He  said 
he  was  in  favor  of  the  principles  of  this  law,  but  now  he  reflects  upon  it, 
bethinks  a  modification  would  be  better.  He  is  in  favor  of  a  prohibition 
of  sale  as  far  as  it  can  be  carried.  But  in  some  cases  there  are  strong  in- 
terests to  resist  the  law.  The  case  in  New  Bedford,  as  given  here,  showed 
this.  In  New  Bedford  and  Boston,  and  large  places,  the  law  would  find 
great  obstructions.  I  have  no  doubt  you  cannot  enforce  the  law  unless 
you  add  wine.  It  is  not  strong  enough  as  it  is,  and  it  will  baffle  all  your 
skill  to  enforce  it.  If  you  prohibit  only  up  to  fifteen  gallons  you  dont  go 
far  enough.  If  in  Norfolk  you  should  say  one  gallon,  the  people  in  two 
years  will  carry  it  to  a  hogshead.  I  want  to  give  the  people  a  right  to 
prohibit  as  far  as  you  can  carry  it. 

I  wish  also  to  say  that  I  have  received  a  communication  from  the  Mayor 
of  Boston,  complaining  that  I  had  reflected  on  the  City  Government.  I 
meant  only  to  say  that  there  would  be  a  great  excitement  here  about  this 
law,  and  it  could  not  be  disconnected  from  the  city  officers,  nor  could 
you  expect  any  great  zeal  on  their  part  to  carry  it  into  effect.  It  could 
only  be  done  by  a  systematic  course  on  the  part  of  the  friends  of  the  law. 

I  atri  opposed  to  having  a  law  attempted,  that  is,  to  be  trampled  on, 
and  I  fear  such  will  be  the  case  with  this.  I  was  astonished  to  hear  of 
the  amount  sold  in  New  Bedford,  <fcc,  in  spite  of  a  prohibitory  law.  So 
far  I  wish  to  qualify  my  former  testimony. 

Mr.  Hallctt.-  Will  you  please  state  whether  you  mean  that  the  City 
authorities  would  not  execute  the  law  from  the  intrinsic  difficulties  of  ihe 
case,  or  from  wilful  neglect  ?  Ans.  I  meant  distinctly,  from  the  intrin- 
sic difficulties  of  the  case  and  not  the  predisposition  of  the  City  Authorities. 

[The  testimony  here  closed  on  both  sides.] 

Monday,  February  IS. 
Mr.  Henry  Williams,  of  Boston  was  heard  for  fifty  minutes,  in  reply 
to  one  of  the  Remonstrants'  counsel,  Mr.  Bolles,  who  had  described  the 


79 

law  of  1822,  of  which  Mr.  W.  was  the  author,  as  an  infamous  and  "  dam- 
nable law,"  that  would  confer  "  an  immortality  of  infamy  "  upon  its  au- 
thor ! 

Joseph  Harrington,  Esq.,  of  Roxbury,  made  an  argument  in  favor  of 
the  law,  for  the  Roxbury  Remonstrants.  After  Mr.  Harrington  closed, 
Mr.  Hallett  summed  up  the  statistical  facts  and  other  evidence,  partic- 
ularly bearing  on  the  pauper  question,  and  presented  elaborate  tables  of 
statistical  facts. 

Monday,  February  18. 
SUMMING  UP  BY  MR.  HALLETT 

For  the  Memorialists, 
With  Statistics  as  to  Crime  and  Pauperism. 

Mr.  Hallett  thanked  the  Committee  for  the  opportunity  allowed  him 
to  sum  up  the  evidence  in  this  Investigation,  and  to  present  a  series  of 
important  statistical  facts,  which  he  should  proceed  to  do  as  briefly  as 
possible,  leaving  to  his  associate  Counsel,  (Mr.  Dexter)  the  general  close 
in  the  argument  for  the  Memorial. 

The  law  under  consideration  was  a  great  change  in  standing  laws  for 
two  hundred  years ;  suddenly  making  an  innocent  act  of  the  citizen,  a 
crime  to-day,  which  ever  before  had  been  protected  and  encouraged  as 
lawful  and  proper.  To  induce  the  Legislature  to  sustain  such  a  change, 
those  who  demand  it  were  bound  to  show  great  and  certain  good,  as  the 
result.  There  should  be  no  doubt,  no  experiment  in  so  grave  a  matter, 
to  warrant  such  new  and  extraordinary  legislation.  The  remonstrants 
had  failed  to  make  out  such  a  case,  or  to  show  the  necessity  for  such  a 
change  in  legislation. 

Their  positions  in  support  of  the  Act  of  1838,  and  ours  in  answer  to 
them,  are  condensed  in  the  following  general  points. 

First.  They  contend  that  the  Act  goes  upon  the  assumption  that  in- 
temperance proceeds  from  dram  shops  which  it  is  intended  to  suppress. 
This  is  their  main  argument,  as  to  the  expediency  of  the  law. 

We  show  that  this  assumption  is  unfounded,  so  far  as  this  Act  can  op- 
erate as  a  remedy,  and  that  instead  of  diminishing,  its  effect  will  be  to  in- 
crease the  places  of  sale. 

1.  To  this  point  the  evidence  of  the  Mayor  and  Marshal,  and  the  ad- 
missions of  Judge  Leland,  are  conclusive  as  to  the  effect  in  Boston. 

2.  The  testimony  for  the  Remonstrants  shows  an  increase  of  dram- 
selling,  under  prohibition,  in  New  Bedford,  Newburyport,  Gloucester, 
and  other  towns,  and  also  an  increase  in  Salem.  They  do  not  show  a 
positive  diminution  any  where  that  is  not  traced  to  voluntary,  moral 
causes.  It  is  impossible  to  escape  from  the  fact,  that  in  all  the  large 
towns,  the  places  of  resort  for  drinking,  will  be  increased  by  the  opera- 
tion of  this  law,  and  the  ineffectual  resistance  and  evasion  it  will  give 
rise  to. 

3.  In  the  smaller  towns,  where  there  has  been  little  or  no  sale,  it  will 
increase  facilities  for  obtaining  small  quantities,  by  the  licensing  of  Apoth- 
ecaries who  can  sell  to  any  one  who  will  pretend  he  wants  it  foi  medi- 
cine, and  especially  by  the  universal  license  to  keep  wine  shops.  Every 
man  who  so  chooses,  can  open  a  wine  shop,  under  this  new  Act,  and 
serve  his  customers  with  white  or  red  wines  to  their  liking.  Their  own 
witnesses  say  if  wine  is  sold,  spirit  will  be.  The  whole  argument  there- 
fore, touching  dram  shops,  entirely  fails,  and  is  disproved  by  the  whole 
force  of  the  testimony  on  both  sides.  If  a  law  is  wanted  to  suppress 
dram  shops,  this  unconstitutional  and  ineffectual  Act  is  not  that  law. 

Second.     Their  second  position   is  founded  on  the  general  evils  of  In- 


80 

temperance  and  the  blessings  of  temperance.  They  called  six  witnesses 
on  this  point,  Drs.  Pierson,  Channing  and  Alden,  Mr.  Grant  and  Revd. 
Messrs  Tuckerman  and  Curtis,  and  occupied  over  two  sittings  of  the 
Committee,  besides  their  arguments  in  the  opening.  But  they  left  even 
this  point  in  more  doubt  than  it  was  when  the  investigation  began. 

The  object  was  unfair  and  deceptive — to  identify  the  cause  of  temper- 
ance as  a  principle  of  good,  with  this  particular  Act,  when  the  whole 
issue  is,  not  temperance,  but  whether  this  Act  will  best  promote  temper- 
ance. 

AVe  admit  the  evil,  but  deny  that  this  Act  is  a  remedy,  and  contend  it 
will  prove  an  aggravation  of  the  evil.  The  difficulty  is,  that  the  friends  of 
the  Act,  under  a  sort  of  monomania  from  contemplating  extravagant 
pictures  of  this  evil,  comprise  in  it  the  sum  of  all  evil;  as  if  human  nature 
would  be  perfect,  without  alcohol.  We  hold  that  there  are  other  evils  in 
the  world,  besides  intemperance  ;  a  fact  which  seems  to  be  entirely  disre- 
garded by  the  ardent  friends  of  this  law.  So  far  from  remedying  this 
single  evil,  a  law  of  prohibition  will  inevitably  result  in  universal  license. 
In  short,  the  axiom  which  Reformers  must  sooner  or  later  admit,  and  the 
sooner  the  better  for  the  cause,  is,  that  regulation  promotes  temper- 
ance, and  prohibition  encourages  intemperance.  On  this  maxim  we 
stand,  as  the  rational  friends  of  practical  temperance. 

Third.  They  assume  that  all  other  laws  have  failed  to  suppress  in- 
temperance, and  therefore  insist  on  this.  As  well  might  they  rail  against 
the  divine  law,  for  having  failed  to  suppress  sin. 

We  contend  that  the  evil  is  one  of  those  which  law  cannot  reach  or 
remedy  ;  and  that  attempted  prohibition  is  more  injurious  to  Temperance 
than  wholesome  regulation  ;  because  the  former  cannot  be  enforced,  and 
leads  to  universal  license  :  the  latter  can  be  enforced,  with  the  general 
consent,  and  will  restrain  the  evil. 

Fourth.  They  contend  that  by  licensing  the  sale,  the  Legislature  li- 
cense intemperance,  and  that  to  restrain  and  regulate  a  lawful  act,  which 
by  excess  may  lend  to  evil,  is  to  sanction  that  evil.  In  other  words  that 
to  regulate  the  sale,  is  to  authorize  an  abuse  of  the  use  of  ardent  spirits. 

The  proposition  refutes  itself,  because  to  regulate  a  lawful  act,  which 
if  abused,  may  tend  to  crime,  and  punish  the  crime  when  committed,  but 
not  the  innocent  act  that  may  be  abused  ;  is  not  to  sanction  the  crime; 
whereas  the  other  mode,  to  prohibit  an  innocent  act  in  one  man,  least 
another  should  take  advantage  of  it  to  commit  an  offence,  is  to  punish 
the  innocent  because  others  may  be  guilty. 

You  punish  assaults  and  violence,  when  committed,  but  you  do  not 
punish  auger  and  ill  temper,  which  lead  to  all  assaults,  and  to  most  of 
the  domestic  misery  in  life. 

You  punish  larccncy  when  committed,  but  you  do  not  destroy  proper- 
ty, or  line  a  man  for  not  concealing  his  property,  so  as  to  prevent  all 
temptations  to  theft.  If  legislation  should  attempt  to  prohibit  all  acts 
that  may  tend  to  evil  and  crime,  it  must  provide  a  special  law  for  every 
possible  human  action. 

The  doctrine  that  it  is  the  duty  of  the  Legislature  to  remove  all  temp- 
tations to  crime,  would  require  the  annihilation  of  all  individual  property 
to  prevent  larccncy,  and  the  restriction  of  every  object  that  can  excite  a 
wrong  impulse  of  human  nature,  or  a  longing  of  desire,  or  a  grasping  of 
avarice.  No  crime  is  committed  without  temptation  and  inducement, 
but  the  law,  except  in  this  single  case,  punishes  no  such  inducement  or 
temptation  or  desire,  unless  wilfully  made  and  excited  in  order  to  abet 
the  crime.  The  intent  then  becomes  crime  in  the  wilful  abettor,  and  is 
punished  because  it  is  crime,  not  because  it  may  tend  to  crime.     It  can- 


81 

not  remove  temptations  to  or  the  causes  of  voluntary  moral  aets.  It 
punishes  crime  because  it  is  a  violation  of  some  natural  law  or  right  se- 
cured by  Society  to  the  community  or  to  individuals.  It  does  not  as- 
sume to  punish  inceptive  acts  that  may  tend  to  a  violation  of  moral  and 
divine  laws,  by  abuse,  and  ultimately  lead  to  a  violation  of  Statute  law. 
It  cannot  reach  or  remove  temptations  to  sin.  To  assume  such  a  power 
in  legislation,  would  be  to  fly  in  the  face  of  Providence,  who  has  made 
man  a  free  moral  agent,  and  placed  good  and  evil  before  him,  that  he 
may  choose  which  he  will.  Will  the  friends  of  this  law  rail  at  the  want 
of  wisdom  in  the  Almighty  in  not  having  removed  all  evil  from  the  world, 
so  that  good  only  could  exist  ?  He  is  the  only  legislator  who  has  the 
power  to  enforce  such  a  law.  Is  man,  without  the  power,  wiser  than 
God? 

Here  is  a  use  of  a  particular  article  of  drink,  depending  on  voluntary 
choice.  The  moderate  use  is  lawful  in  itself  and  not  positively  injurious, 
more  than  any  other  harmless  luxury  temperately  enjoyed.  The  tendency 
of  the  use  is  to  excess  in  some,  which  ruins  themselves  and  injures  oth- 
ers ;  and  so  is  the  tendency  of  every  luxury  or  indulgence  not  absolutely 
indispensible  to  life.  The  excess  is  the  evil,  not  the  moderate  use  ;  and 
the  only  question  for  wise  legislation  is,  how  can  it  best  restrain  the  evil 
effects,  not  how  it  shall  prohibit  or  render  impracticable  the  moderate 
use  in  all,  lest  it  should  lead  to  excess  in  some. 

Content  with  the  law,  is  the  design  of  all  wise  legislation,  and  in  free 
government  there  never  can  be,  and  never  ought  to  be,  content  with  that 
kind  of  legislation  which  punishes  one  man  for  the  crime  of  another,  or 
deprives  one  man  of  his  inalienable  right,  because  another  man  may 
abuse  his.  There  must  be  something  wrong  in  this  Act,  for  while  legis- 
lation is  becoming  liberalized,  in  the  punishment  of  crime  itself,  even  to 
the  abolition  of  capital  punishment,  for  all  but  two  offences  in  this  Com- 
monwealth; this  law  proposes  to  create  new  and  artificial  crimes  in  order 
to  punish  them- — A  manifest  violence  to  the  spirit  and  progress  of  the 
age.  When  nearly  all  civil  and  religious  improvement  is  left  to  volunta- 
ry influences*  is  it  wise  to  invade  voluntary  morals  by  arbitrary  laws  ? 

Fifth.  They  deny  that  the  public  good  requires  licensing  and  regula- 
tion, but  demands  prohibition ;  and  they  sneer  at  this  phrase  in  the  old 
law,  of  "  public  good.'''' 

But  if  regulation  restrains  the  evils  of  intemperance,  and  prohibition 
will  increase  those  evils,  then  the  "  public  good  "  requires  regulation 
rather  than  prohibition.  This  is  the  very  point  at  issue.  We  contend, 
and  all  experience  proves,  that  a  law  of  prohibition  cannot  be  enforced, 
while  a  law  of  regulation  of  trades  and  occupations  may.  That  the  lat- 
ter promotes,  while  the  former  injures,  the  cause  of  temperance.  Hence 
if  the  public  good  is  to  be  consulted,  that  course  is  be  adopted  which  will 
practically  secure  the  most  public  good,  Licenses  are  granted  for  that 
purpose,  and  not  as  the  friends  of  prohibition  pretend,  because  the  public 
good  requires  the  use  of  the  article. 

Even  in  the  little  town  of  Tisbury,  (Dukes  County)  entire  prohibition 
cannot  be  enforced,  and  one  of  the  Selectmen  of  that  town  has  testified 
that  they  find  it  necessary  to  wink  at  one  place  being  kept  open,  as  a 
sort  of  safety  valve.  There  is  true  philosophy  in  this,  and  there  is  sound 
sense  in  requiring  licensing  for  the  public  good.  Without  either  licensing 
or  prohibition,  the  sale  would  be  universal  under  general  standing  laws 
as  to  all  property  rights.  With  prohibition  it  will  practically  become  so, 
and  the  evils  of  crime,  prosecutions  and  excitements  and  party  conflicts 
are  to  be  superadded.     Licensing  is  the  only  practicable  limitation,  un- 

11 


82 

til  universal  consent  establishes  disuse  without  force  laws ;  and  the  whole 
question  is,  will  you  have  this  limit  or  have  none  1 

You  might  as  well  undertake  to  prevent  the  eruption  of  volcanoes,  and 
the  escape  of  electricity,  by  plastering  over  all  the  holes  in  the  earth,  as 
to  attempt  to  restrain  the  appetite  by  a  law  of  prohibition. 

Sixth.  They  put  into  the  case  the  physical  and  mental  evils  of  intem- 
perance, and  its  effects  on  social  affections. 

All  this  was  admitted  before  they  attempted  to  prove  it,  in  an  exagger- 
ated form,  as  if  to  terrify  the  Legislature  into  making  unjust  laws. 

Our  reply  is,  this  law  is  no  remedy,  nor  do  they  show  that  it  can  be 
any.  They  beg  the  question  by  assuming  it  will  be  beneficial  if  it  can 
be  enforced,  and  the  farthest  they  go,  is  to  hope  it  can  be  enforced,  while 
we  show  that  it  cannot  be  enforced. 

On  the  other  hand  we  show  that  this  Act  will  be  a  positive  injury  to 
society,  to  the  social  virtues,  to  the  rights  of  property  and  person,  to 
the  public  justice  and  to  the  cause  of  temperance. 

1.  By  the  costs  and  conflicts  in  unavailing  prosecutions  to  enforce  a 
law  against  the  strongest  convictions  of  personal  right  in  so  large  a  mass 
of  the  community  as  will  be  found  unyieldingly  opposed  to  it,  on  great 
fundamental  principles. 

2.  By  the  hypocracy,  meanness  and  malice  it  will  engender.  By  the 
evasions  if  not  open  violence  it  will  incite.  By  the  false  witnesses  to 
convict,  and  the  perjuries  to  escape  conviction,  in  your  Courts,  and  by 
the  inevitable  disagreement  of  Juries,  who  are  bound  to  acquit,  if  con- 
vinced the  Act  is  unconstitutional,  unequal  and  unjust. 

3.  By  excitements,  conflicts  and  divisions  in  communities,  to  the  dis- 
turbance of  good  neighborhood  and  the  public  peace,  and  by  the  fixed 
determination  it  will  give  to  men  to  obtain  at  all  hazards  what  an  unjust 
and  unequal  law  assumes  to  prohibit  to  one  class  of  citizens,  and  allow 
to  another. 

Parties  are  already  formed,  for  and  against  this  Act,  with  bigotry,  zeal, 
self-will,  pertinacity,  interest,  and  all  the  incentives,  to  an  excited  conflict 
animating  them,  as  well  as  principle.  Let  the  struggle  go  on,  and  how 
long  before  they  will  be  ready  to  take  each  other  by  the  throat?  Such 
an  unhappy  state  of  things  will  hardly  promote  the  social  affections  ! 
Men  of  independent  spirit,  can  never  be  subdued  in  such  a  struggle,  by 
the  strong  arm  of  a  tyranical  law,  and  even  if  subdued,  it  can  only  be  to 
make  them  discontented  citizens,  and  to  leave  a  breach  in  social  and  civil 
relations,  as  enduring  as  the  sense  of  wrong. 

Seventh.  The  supporters  of  the  Act,  answer  our  Memorials  from  Bos- 
ton against  it,  by  sneering  at  the  signers,  and  the  manner  in  which  they 
write  their  names.  They  do  not  all  own  or  hire  houses,  ride  in  carriages, 
and  write  elegantly !  therefore  their  names  are  not  to  count  in  a  petition 
to  the  Legislature. 

The  argument,  like  the  Act  it  upholds,  is  founded  on  unjust  and  aristo- 
cratic distinctions  in  Society.  It  assumes  that  a  man  without  visible  prop- 
erty has  no  stake  in  society,  and  should  have  no  political  power  in  the 
State.  It  is  money  and  not  men,  which  they  contend  should  count  in 
memorials  and  petitions  to  i  he  Legislating  touching  the  public  good! 
The  Constitution  recognizes  no  such  distinction.  It  says  "  the  people," 
not  merely  those  who  own  houses  and  can  write  well,  but  "  the  people, 
have  aright  to  give  instructions  to  their  representatives,  and  to  request  of 
the  legislative  body  redress  of  wrongs  and  grievances." 

There  are  two  Memorials  from  citizens  of  Boston,  bearing  5900  signa- 
tures. The  remonstrants  sneer  at  all  they  do  not  find  in  the  Directory, 
as  worthless  and  of  no  account.     But  there  are  15000  voters  in  the  City  of 


83 

Boston,  and  it  is  said,  not  8000  of  them  can  be  found  in  the  Directory. 
They  are  without  houses  of  their  own,  young  men,  mechanics,  journey- 
men, laborers,  the  hard  working  and  honest  citizens,  who  are  ever  more 
jealous  of  an  infringement  on  personal  rights  than  the  specially  favored 
few,  because  unequal  laws  always  fall  hardest  on  them.  Are  these  to  be 
excluded  and  denied  the  rights  of  citizenship? 

If  this  number  of  5900  men,  (not  women  and  children)  are  influential 
and  honest  citizens,  you  then  have  an  immense  moral  power  to  contend 
against  in  enforcing  your  c/bnoxious  law.  If  otherwise,  you  then  have  a 
mass  of  more  dangerous  Opposition  ;  a  physical  force,  which  if  reckless 
and  unprincipled,  aVir  pretended,  you  have  no  standing  army,  no  police 
and  no  power  to  control.  Let  the  Remonstrants  take  their  choice  of  the 
two  impediments  to  their  impossible  law. 

Eighth.  Their  eighth  position  in  support  of  the  Act  is,  that  intemper- 
ance is  a  load  on  political  economy,  in  reference  to  crime  and  pauperism. 

If  this  is  meant  of  intemperance  as  a  moral  and  physical  evil,  there  is 
no  controversy  between  us.  If  an  argument  for  the  aet  of  1838,  as  a 
remedy,  we  deny  its  truth  and  its  application. 

Effects  on  Crime. 

1st,  as  to  Crime.  Their  evidence  is  vague  and  inconclusive.  Their 
statistics  mere  guesses,  without  reasonable  data  or  tangible  facts — at  best, 
the  excuses  of  criminals  who  think  to  palliate  their  crimes  by  attributing 
them  to  intoxication.  In  most  cases  the  estimates  are  made  by  men 
zealous  in  exagerating  the  evil  as  the  source  instead  of  (often)  the  conse- 
quence of  all  other  evils.  It  is  a  problem  not  yet  solved,  how  far  intem- 
perance engenders  crime,  and  leads  to  misfortune  ;  or  crime  and  misfor- 
tune engender  intemperance,  The  vices  always  go  together,  like  the 
virtues.  They  act  upon  each  other,  as  mutual  cause  and  effect.  The 
vicious  become  intemperate  because  they  are  vicious,  quite  as  often  per- 
haps, as  the  intemperate  become  vicious  because  they  are  intemperate. 

The  temperance  Reformers  regard  it  as  a  sort  of  "pious  fraud,"  to 
attribute  all  vice  and  crime  to  intemperance,  in  order  to  render  it  odious. 
The  vice  of  intemperance  cannot  be  rendered  too  detestable,  as  a  vice, 
but  when  these  loose  statistics  are  used  to  urge  the  Legislature  to  violate 
fundamental  rights,  and  enact  arbitrary  and  unjust  laws,  it  becomes  a 
duty  to  expose  their  fallacy.  The  higher  order  of  crimes,  the  frauds,  and 
conspiracies,  and  villainies  that  wound  society  deepest,  are  rarely  allied 
to  intemperance.  It  requires  cool  heads  to  perpetrate  attrocious  crimes. 
Such  is  the  evidence  as  to  State  prisons. 

2nd.  There  is  no  increase  of  crime  shown,  or  that  can  be  shown, 
which  calls  for  an  exercise  of  a  contested  and  dangerous  power  by  the  Le- 
gislature, or  for  any  extraordinary  and  doubtful  hypothesis  to  be  assumed 
to  justify  a  questionable  Act  of  legislation.  We  are  making  punishments 
milder,  and  simply fying  the  criminal  code,  on  the  very  ground  that  crime 
is  diminishing,  and  yet  the  argument  now  is  that  we  must  create  artificial 
crimes,  and  make  lawful  acts  penal,  in  order  to  prevent  crime  ! 

jThere  has  been  in  fact,  no  increase  of  orime  in  this  country,  of  late 
years,  to  produce  alarm,  and  demand  an  increase  of  penal  enactments. 
Population  has  increased  much  faster  than  the  ratio  of  crimes,  and  in  no 
community  on  earth,  is  there  less  of  positive  crime  than  in  Massachusetts, 
though  our  Statute  book  goes  beyond  that  of  any  free  State  in  the  world, 
in  the  creation  of  artificial  offences;  and  hence  we  seem  to  have  more 
criminals  than  any  other  State,  and  our  criminal  costs  of  prosecutions 
exceed  that  of  all  the  other  New  England  States  together. 

The  Remonstrants  have  given  in  evidence,  the  9th  Annual  Report  of 
the  Prison  Discipline  Society.     Page  29,  is  an  article  headed  "Not  an 


84 

alarming  increase  of  crime  in  Massachusetts,  compared  with  the  increase 
of  population."  This  is  shown  by  their  tables  giving  the  results  of  te  n 
years  up  to  1834,  the  very  period  when  no  prohibitory  laws  as  to  licenses 
were  in  existence. 

In  Suffolk,  where  there  is  the  largest  foreign  influx,  the  population  had 
increased  one  third  and  crime  less  than  one  sixth.  In  Essex  C  ounty,  the 
only  town  where  crime  had  diminished,  was  Newburyport,  which  is  now 
held  up  by  the  District  Attorney,  in  his  evidence,  as  the  most  reprobate 
in  violating  the  law  of  prohibition.  Here  are  figures  to  demonstrate  our 
position. 


Table  of  the  relative  increase  of  Population  and  Crime  in  Massachusetts 
for  ten  years+frorn  1833  to  1833. 


Counties. 

Increase  of  Popula- 

No. of  Criminal 

Increase  over 

tion  in  ten  year*. 

actions  in  1833. 

1823. 

Suffolk 

18,000  ' 

1,318 

197 

Essex 

9,000 

210 

79 

Middlesex 

16,000 

175 

94* 

Barnstable 

4,000 

»5 

9 

Dukes 

225 

9 

6 

Bristol 

8,000 

162 

53 

Berkshire 

2,000 

34 

6 

*  Including  Lowell  within  a  few  years. 


Counties  where  Crime  had  decreased,  or  not  increased. 


Hampden 

3,000 

32 

I 

Hampshire 

3,700 

17 

5 

Norfolk 

5,000 

17 

14 

Worcester 

10,000 

40 

14 

Plymouth 

4,000 

20 

14 

Franklin 

200 

-    31 

14 

We  all  agree  that  intemperance  lias  decreased  since- 1833,  by  change  of 
habits  and  customs,  under  enlightened  moral  influence.  If  crimes  have  in- 
creased in  the  past  five  years,  it  would  follow  that  there  is  more  crime  un- 
der the  Temperance  reform  than  before  it  began.  But  the  truth  is,  crime 
has  not  increased.  Either  way,  the  argument  as  to  crime,  utterly  fails  to 
show  a  demand  for,  or  justification  of  this  Jaw. 

It  has  besome  quite  too  common  to  ascribe  all  crimes  and  all  evils  to  In- 
temperance, and  to  libel  ourselves  in  the  estimation  of  the  world,  as  a  com- 
munity of  tipplers  and  drunkards,  for  the  sake  of  making  out  a  strong  case. 
The  community  bore  this  injustice  so  long  as  it  is  confined  to  the  decla- 
mation and  the  guessing  statistics  of  Temperance  agents.  They  will  revolt 
at  it,  when  it  is  urged  as  an  argument  to  measure  out  drink  and  diet  by 
law — to  grant  free  indulgence  to  the  rich  and  deny  the  right  of  moral  voli- 
tion to  the  comparative  poor.  We  have  been  driven  by  the  harshness  of 
this  law  and  the  arrogant  confidence  of  its  supporters,  to  test  the  truth  of 
their  positions,  which  we  were  not  prepared  at  first  to  deny.  They  would 
not  take  our  admission,  and  we  now  {demolish  their  whole  arguments,  by 
showing  the  falsity  of  their  assumed  facts. 

The  Remonstrants  put  in  another  Document  the  13th  and  last  Prison 
Discipline  Report.  From  that  Report  1  have  drawn  theffollowing  compari- 
son of  State  Prison  offences,  not  at  all  favorable  to  the  force  laws  of  Massa- 
chusetts. 


85 


Table  of  relative  commitments  to  the  State   Prisons,  in  Jive  States  from 
1836  to  1839,  at  intervals  of  four  years. 


1826 

|  1330 

|  1834 

|  1837 

|  1838 

Decrease. 

Increase. 

Massachusetts.     Whole  No. 

313 

290 

277 

291 

313 

Same. 

Committed 

81 

115 

119 

99 

116 

35 

Maine.     Whole  No. 

79 

94 

64 

77 

2 

Committed 

58 

36 

33 

34 

24 

New  Hampshire.    Whole  No. 

59 

68 

79 

72 

70 

11 

Committed 

13 

31 

13 

12 

5 

8 

Connecticut.     Whole  No. 

134 

167 

189 

204 

198 

64 

Committed 

66 

73 

54  , 

57 

5r 

9 

■ 

From 

* 

1831 

1832 

1834 

1837 

Sing  Sing  N.  Y.     Whole  No. 

875 

906 

827 

753 

122 

Committed 

338 

289 

258 

261 

76 

The  table  is  not  complete  in  all  the  Five  Slates,  from  lack  of  returns,  and 
the  last  year  in  Massachusetts  is  taken  from  verbal  testimony,  but  the  result, 
by  any  mode  of  comparison,  gives  a  decidedly  worse  exhibit  for  Massachu- 
setts, with  her  temperance  laws,  than  either  of  the  other  States  without 
them.  In  every  other  State  the  commitments  have  decreased.  In  this 
State  they  have  alone  increased  35,  while  the  whole  number  is  not  dimin- 
ished, though  it  has  done  so  in  every  other  State  but  New  Hampshire. 

What  then  becomes  of  the  argument  that  the  state  of  Crime  among  us 
demands  Temperance  force  laws? 

PAUPERISM. 

Ninth.  But  the  great  argument  for  the  Act  when  we  began  this  invest- 
igation, was  pauperism  and  intemperance.  The  opening  Counsel  for  the 
Remonstrants  exclaimed  "  the  statistics  on  crime  and  pauperism  are  over- 
whelming !"  And  so  indeed  he  will  find  them,  but  not  on  his  side  of  the 
question. 

We  did  not  desire  to  detain  the  Committee  on  the  evils  of  intemperance, 
or  its  effects  on  crime  and  pauperism.  Supposing  there  must  be  some  truth 
in  statements  made  so  confidently,  we  tendered  a  general  cognorit,  and  offer- 
ed to  make  up  the  issue  upon  the  merits  of  the  Act  of  183S.  They  refused, 
and  insisted  upon  proving  what  we  had  not  denied.  The  inquiry  has  been 
forced  upon  us,  and  we  will  meet  it  with  facts  and  figures  that  cannot  be 
questioned.    ' 

We  deny  totally  that  pauperism  is  increased  by  licensing,  and  diminish- 
ed by  prohibition  ;  and  if  there  be  truth  in  official  returns,  and  the  oaths  of 
town  officers,  we  will  demonstrate  the  direct  reverse  of  that  proposition. 

We  put  into  the  case,  as  the  best  possible  evidence,  the  "  abstracts  of 
the  returns  of  the  Overseers  of  the  Poor,"  in  the  towns  in  the  State,  from 
lS35to  1838  inclusive. 

The  returns  of  1835  and  1836,  were  made  under  an  order  of  the  House 
alone,  in  1833,  requiring  the  name  and  circumstances  of  each  individual 
pauper.  There  are  306  towns  in  the  State,  and  this  number  of  Boards  of 
Overseers  are  to  make  their  separate  returns  to  the  Secretary  of  State, 
which  precludes  all  possibility  of  concert  between  them,  and  would  seem  to 
insure  the  truth,  if-  there  can  be  truth  in  statistics.  The  Secretary  makes 
an  abstract,  by  Counties,  from  these  town  returns,  and  these  abstracts  are 
the  authority  we  rely  on  in  this  statement. 

In  1835 — 164  towns  made  detailed  returns.  Whole  expenditures  of  pau- 
pers in  the  Commonwealth  for  that  year,  $239,476,  or  $392,  to  every  1000 
inhabitants. 


86 

In  1836 — 204  towns  made  returns.  The  whole  amount  of  expenses  in 
the  State  is  not  given. 

In  1837,  and  1838 — returns  were  made  under  an  act  of  April  18,  1836, 
requiring  the  Overseers  to  make  correct  returns,  under  a  penally  of  $100. 
The  question  as  to  intemperance,  was  precisely  the  same  in  both  years. 

In  1837 — returns  were  made  from  289  towns — all  but  16  of  the  small 
country  towns.     Total  expenses  $306,548. 

In  1833 — returns  were  made  from  299  towns— all  but  seven  in  the  State. 
Expenses,  8325,087 — which  is  8437  to  every  1000  inhabitants.  Increase 
since  1835,  845  (o  every  1000  inhabitants.  The  returns  of  these  towns  last 
year,  are  made  under  precisely  the  same  specifications,  and  those  of  the  two 
previous  years  correspond  as  far  as  the  towns  are  given,  so  that  taking  the 
same  towns,  a  parrallel  comparison  can  be  carried  through  the  whole  period. 

There  is  an  apparent  discrepancy  in  the  returns  for  the  City  of  Boston. 
(Suffolk,)  in  1837  and  1838.  No  return  of  the  out  door  poor  was  made  till 
1837.  The  same  question  was  put  to  the  Overseers  in  1837  and  1833, 
to  which  they'gave  the  same  answer,  as  to  intemperance,  viz  :  "  Three 
fourths  of  those  in  the  Alms  House;  of  the  out  door  poor  a  much  less  pro- 
portion." 

This  is  as  definite  as  the  description  by  a  witness  of  the  size  of  a  stone 
which  knocked  a  man  down,  "  about  as  big  as  a  piece  of  chalk  !"  In  the 
Alms  House  estimate,  it  may  possibly  approximate  to  truth,  though  unques- 
tionably greatly  exagerated,  and  most  unjnst  to  the  unfortunate  poor.  But 
as  to  those  assisted  out  of  the  Alms  House,  it  is  a  mere  wanton  guess,  and 
means  nothing,  I  therefore  throw  it  aside  in  both  years,  as  giving  no  infor- 
mation whatever,  and  take  only  the  estimate  of  the  poor  in  the  Alms  House. 
The  Secretary  of  State,  Mr.  Bigelow,  has  very  properly  pursued  this 
cause  this  year,  (1833)  in  the  abstract.  Last  year,  (1837)  Mr.  Frothing- 
ham,  one  of  the  Clerks  in  the  Office,  who  ma<le  up  the  abstract,  took  three 
fourths  in  the  Boston  Alms  House  1082,  andtlien  at  a  mere  guess,  added  one 
half  of  those  assisted  out  of  the  Alms  House,  918,  making  a  lumping  total 
of  2000.  In  this  way  are  the  unfortunate  poor  slandered  by  the  wholesale 
guesses  of  temperance  reformers;  too  indolent,  or  self  sufficient  to  invest- 
igate the  truth;  and  upon  these  loose  libels  on  the  poor  is  founded  the  chief 
pretence  for  this  Sumptuary  Act  to  restrain  their  appetites,  and  restrict 
their  rights,  in  order  to  save  from  a  pauper  tax  the  pockets  of  the  rich 
man  who  may  freely  indulge  in  his  luxuries.* 

The  comparison  is  therefore  properly  made,  as  to  Suffolk,  upon  the  Alms 
House  report  for  1837  and  1838.  With  these  explanations,  we  submit  the 
following  tables,  prepared,  and  compared  with  great  care,  and  the  accuracy 
of  which,  Mr.  H.  said  he  had  tested  in  their  preparation,  with  the  utmost 
precision  practicable.! 

The  Counties  in  which  Licenses  have  been  withheld  from  1833 — 4,  and 
which  we  designate  the  prohibitory  Counties,  are  Norfolk,  Bristol,  Plymouth, 
Barnstable,  Nantucket,  Dukes,  Essex,  and  Hampshire — 8  Counties.  The 
other  six  Counties,  with  a  much  larger  population,  and  much  more  exposed, 
as  a  whole,  to  foreigners  and  other  causes  of  pauperism,  are  Suffolk,  Mid- 
dlesex, Worcester,  Franklin,  Hampden  and  Berkshire.  These  we  desig- 
nate as  the  regulating  Counties. 


*  The  Secretary  has  corrected  the  error  as  to  Boston,  this  year,  and  in  a  note  says, 
"The  abstract  includes  for  Boston  only  1088,  the  same  being  ''  three  fourths  of  those 
in  the  Alms  i use.."  The  Secretary  having  no  means  of  estimating  with  preEcision 
the  proportion  of  the  out  door  poor." 

t  The  tables  were  submitted  to  the  committee  and  compared  by  them  for  a  fortnight, 
with  the  official  returns,  and  no  error  was  detected  in  them. 


87 


PAUPERISM.     TABLE  No.  1. 

Comparison  of  Pauper  Returns  from  1835  to  1839,  of  all  the  towns  in  foe 

prohibatcry  Counties,  from  which  returns  toere  made  in  1835,     N.  B. 

The  returns  for  1835,  1837,  and  1838,  are  from  the  same  towns  in  each 

County.      The  retnrns  for  1836  are  imperfect,  and  do  not  embrace  the 

same  torons. 


Norfolk  County,  16  Towns* 


Year 


No  of  Towns       No  of  Paupers        Intemperate       Not  stated    I    Expense        Whole  Population1 

!  of  the  Towns 


1835     |      16  out  of  22     | 

392 

1 

86             |           12  i 

|       $7,534 

|            28,s3p 

1836     |     19  out  of  22     | 

411 

1 

131  .          |           139 

|      13,155 

36,95 1 

1837     |     16  out  of  32     | 

568 

1 

209             | 

|      12,686 

28,838 

1838     |      16  out  of  22      | 

633 

! 

26-2              | 

|       14,942 

23,8:;8 

*  In  17  towns  in  Norfolk 
since  prohibition  began. 

in 

1833, 

there 

were 

343  Paupers,  106  Intemperate  :  showing  an  iucri  ase  ever 

Bristol  County,  15  Towns. 


Year 

Mo  ot  Towns 

No 

if  Paupers 

|     Intemperate   | 

i\Ol 

stated 

Expense    | 

Population 

1835 

|      15  out  of  19 

1 

430 

I           12U 

113 

|       I 0,664       | 

35,238 

1836 

12  out  of  19 

396 

1           158            | 

|       10,225      | 

3  1.822 

1837 

!5out  of  19 

854 

1            523              | 

|      20,659      | 

35,238 

1838 

15  out  of  19 

915 

6.<4             | 

|      20,.  22      | 

35,238 

Plymouth  County,  17  Toicns. 


Year   |    No  of  Towns    |    No  of  Paupers    |     Intemperate   |    [vot  staled    |    Expense    |    Pop,  in  17  Towns 


1835    |     17  out  of  l'1      | 


361 


88 


51 


9,814 


36,646 


1836    |    Same  towns 


344 


72 


60 


1837 


Same  towns 


12,319      | 


36,646 


544 


174 


1838    |    Same  towns    | 


572 


J 15,478      | 


36, 646 


26i 


I       16,760       | 


36,646 


Essex  County,  17  Toicns. 


Year   | 

No 

of  Towns 

I    No 

of  Pai 

pers   | 

Inlempr 

rate 

i\ot  staled 

E  pense    1 

Population 

1835    | 

17 

tiut  of 

26 

1 

536 

1 

153 

1 

99 

I       14,029       | 

41,539 

;83     | 

Same 

1 

518 

1 

177 

i 

54 

13,626       | 

;rame 

i837    | 

Same 

1* 

951 

I 

443 

|      22,737       | 

Same 

1838     | 

S  line 

1 

968 

I 

50.' 

|      23,7u7      | 

Mime 

Not  inch 

ding  Sr 

U:  1 II 

in  1836. 

Hampshire  County,  17  Towns. 


Year 

o  of  Towns 

o  of  Paupers 

1        1  II  tClll  |< 

(.rale 

i     Not 

staled 

bx  pense 

Population 

lSJo 

17  out  .,f  23 

230 

67 

30 

5,051 

23,2  .7 

1S36 

14  out  of  23  not 
coiresponding 

172 

14 

17 

3,762 

2  >,0S9 

1837 

17  out  of  23 

362 

185 

8,928 

23.247 

18*8 

17  out  of  -3 

3*0 

127 

1 

9,505 

1           .  -3,247 

88 


PAUPERISM.     TABLE  No.  2. 

Comparison  of  Pauper  Returns  for  1837  and  1838,  betioeen  Eight  Coun- 
ties, in  Six  of  iffhich  prohibition  has  been  entire  for  four  years,  (and  in 
two  all  but  taverns,  viz.  Essex  amd  Hampshire,)  and,  Six  Counties  where 
there  has  been  no  prohibition. 

■^i^— i^MWIW»  I  I  »  I       ■    Ml     I    !*■■■!  II  II— ^^M  I  —  ■!  —  Mil  — ^^— *— ^ 

The  Eight  Prohibitory  Counties. 


Counties 


C    CD 
O    - 


3  re 


"13 
o  re 

re  t 

os'g 

re  re 
•1 
<•  o 


h: 


S    OS 

re  re 


K  O 


Population 


A orf  Ik 


Bristol 


Plymouth 


Barnstable 
.Nantucket 


Dukes 


Hampshire 


Essex 


Totals 


64 


117 


b3 


24 


49 
~r3iF 


i    so    r 


Same 


23      ! 


r 


Same    | 


f  Same 


13 

TfiF 


I      53      ! 


I    250      | 


57 |  $  1 ,992  | 


543 


J, 896  | 


274  | 


500 


18 


757 


20 


5,144 


498      |    .  53      |      28      I      85 


11,124  | 


Aggregate 

Population 

in  1830 

286,610 

Aggregate 

Population 

in  1837 

322,848 


The  Six  Regulating  Counties. 


Counties 


5>§ 


£  re 


s 
■c 


"S, 


o  re 


k: 


re  re 
o 


HO 
x  re 


Popul  .turn 


Suffolk 

1    381      , 

1 

15 

1    38)      | 

1                1    $177 

Aggregate 
Population 

Middlesex 

1      15      1 

1                 1 

190 

|      65 

|     2,308  | 

Worcester 

1      35      | 

1      38      | 

1      13 

|     3,205  | 

in  18(0 

Hampden 

1      51      | 

1      29      | 

1     arj    | 

1      23      | 

1 

12 

1     2,257  | 

342,142 

Berkshire 

1      13      i 

1     1,450  | 

In   1837 

Frankln 

1            ■   1 

2 

37      | 

37 

1        2      | 

|               |     1  631 

378,483 

Total  < 

1     511       | 

2 

1      81       | 

242 

|     478 

12 

1  10,220  |     1.80S 

Showing  the  results  in  favor  of  the  Regulating  Counties,  viz  :  Greater 
increase  of  Poor  48;  decrease  of  Intemperate  Poor  161  ;  increase  of  For- 
eign Poor  615  ;  increase  of  Expenses  $8,412. 

In  the  Prohibiting  Counties,  increase  of  Poor  461  ;  of  Intemperates 
445;  decrease  of  Foreign  Poor  57;  increase  of  Expenses  $11,124. 

Remarks.  Relative  nett  gain  in  the  Regulating,  over  the  Prohibiting 
Counties,  (notwithstanding  a  large  increase  of  foreign  poor  in  the  former, 
and  decrease  in  the  latter,  exceeding  by  104  the  whole  increase  of  poor 
in  tne  former,)  viz:  nett  gain  in  intemperate  poor  606;  in  expense  $2712. 

The  comparison  is  the  more  striking  from  the  fact  that  the  population 
in  the  six  Regulating  Counties  which  show  the  best  results  as  to  pauperism 
and  intemperance,  was  greater  in  1830  than  in  the  Prohibiting  Counties  by 
55,532,  and  in  1837  by  55,535.  That  excess  of  population  if  added  to 
the  Piohibiting  Counties,  would,  in  the  some  proportion,  add  86  intemper- 
ate poor,  making  their  number,  with  the  same  population  as  the  six  Regu- 
lating Counties.  531  actual  increase,  and  a  nett  relative  increase  of  682. 

If  Salem  is  deducted  from  Essex,  it  only  varies  the  result  25  less  pau- 
pers, 22  less  intemperate,  5  less  decrease  of  foreigners,  and  $400  less  ex- 
pense.    E=sex  would  then  stand  166  increase  poor,  228  increase  intemper- 


89 

ale,  and  $4774  increase  expenses;,  and   Middlesex  15  increase  poor,  190 
decrease  intemperate,  and  $2308  increase  expenses. 

The  comparison  between  Essex  and  Middlesex  is  a  most  conclusive  de- 
monstration of  the  effects  of  the  two  policies.  Essex  has  been  the  field  of 
District  Attorney  Huntington's  zealous  labors.  Bishop  Laud  never  perse- 
cuted the  conventiclers  more  furiously  than  that  officer  has  tire  retailers  in 
Essex.  He  there  reigns  supremely  in  Courts  and  over  juries,  and  convicts 
whom  he  will.  He  has  driven  this  process  for  six  years,  while  Middlesex 
and  her  juries  have  been  unawed  by  his  official  power,  and  that 
county  has  licensed  and  sold  freely.  What  is  the  result  in  both  these  ag- 
ricultural counties'? 

Essex  has  93,000  population,  Middlesex  98,000. 

Essex  has  Salem  and  Newburyport,  Middlesex,  Lowell  and  Charlestown. 

Essex  has  had  a  decrease  of  20  foreigners  to  relieve  her  pauperism,  Mid- 
dlesex has  had  an  increase  of  65  foreigners  to  add  to  her  pauperism,  with 
the  constant  source  of  this  increase,  the  shifting  manufacturing  population 
of  Lowell  and  other  like  places,  to  operate  on  her  pauperism.  And  yet 
Middlesex  exhibits  151  less  increase  of  poor,  190  decrease  to  22S  increase 
in  Essex"  of  intemperate  poor,  and  $2466  less  expense  in  the  support  of 
the  poor. 

No  returns  of  overseers,  wlio  are  for  or  against  licensing,  can  affect  these 
aggregates,  as  to  whole  numbers  and  whole  expense.  The  result  can  only 
be  traced  to  the  operation  of  the  two  systems  of  regulation  and  prohibition. 

The  like  result  is  shown  as  to  crime.  In  three  years,  from  1835  to 
1239,  Essex  has  sent  to  her  prisons  1211  criminals.  In  the  same  period, 
Middlesex  but  945.  Gain  257.  Both- counties  have  the  same  prosecu- 
ting officer. 


PAUPERISM.     TABLE  No.  3. 

Comparison  of  Pauperism  and  Intemperance,  between  the  years  1837  and 
1838.     Full  Returns,  and  complete  from  all  the  Counties. 


Counties 

Whole 
No   ol 

1    Poor  in 
1837 

Whole 
No  of 
1   Poor  in 
1838 

lutein- 

pera  e 
in 

1837    • 

j    lntem- 

1    perate 
m 

1838 

1  !•  oreicn- 
ers  in 
1837 

1  1'oreign- 
ers  in 
1838 

1  Expenses 

|    in  1837 

Expenses 
in  1838 

Huffol  > 

3,291 

|      3,675 

[        1 ,087 

1,072 

1,304 

1,684 

4  ,913 

42,-36 

Essex 

2,421 

2,612 

1,611 

1,861 

19J 

17' 

53,328 

58,469 

Middlesex 

1       V.  84 

|       2,1199 

|       1,358 

|       1,168 

|           768 

833 

53,518 

55,826 

Worcester 

|        1, 3(5.) 

|       1,395 

|          S19 

557 

|           136 

154 

31,5  e 

31,713 

Hampshire 

428 

441 

202 

149 

44 

36 

10,681 

11,438 

11   nipden 

3  it; 

397 

|           135 

160 

|           '23 

35 

1         7,821 

9,878 

Franklin 

435 

433 

129 

•Q-j 

2 

4 

1 1 ,233 

9,602 

Berkshire 

|           53!) 

|           568 

|         Bfl 

150 

1           »' 

1            34 

1        11,0  2 

12,452 

Norfolk 

800 

809 

29/ 

361 

144 

87 

17,809 

19,751 

Biistol 

|        1,310 

1        >,4  7 

|          866 

929 

2H 

22) 

|       27,7t3 

28,3i'6 

1  lymouth 

636 

|          685 

|          '.01 

291 

35 

35 

17,68 

19,514 

B  unstable 

3«7 

32i 

58 

81 

' 

3 

12,588 

12,862 

Dukes  3  towns 

41 

41 

4 

4 

2,302       | 

2,320 

Nantuckei 

|              98 

|           167 

1            79 

1             « 

1               1 

10 

|         6,720 

7,220 

Tot  ils  in  3  '5 
Tiwns 

14,'  99 

15.069 

6,673 

6,962 

2,870 

3,990 

3  6,541 

325,087 

Note.  In  1835  the  Commissioners  on  Pauperism  estimated  the  whole 
expense  in  the  Commonwealth  $239,476. 

In  1835,  Governor  Davis,  in  his  message,  called  the  attention  of  the 
Legislature  to  the  fact  that  pauperism  was  on  the  increase. 

Mr.  Artemas  Simmons,  of  the  Boston  Almshouse,  says:  "The  pauper 
expenses  are  twice  as  great  in    Massachusetts,  in  proportion  to  population, 

12 


90 

as  in  New- York,  where  returns  are  made  annually,  by  counties."  What 
is  the  plain  inference?  The  pauper  expenses  were  never  seriously  com- 
plained of  as  increasing  in  this  State,  till  the  force  temperance  laws  began 
to  operate.  Under  that  process  they  have  become  double  the  like  expenses 
in  New- York,  which  has  a  vastly  less  moral  and  industrious  population,  as  a 
whole,  with  immensely  more  foreigners  and  vagrants,  and  without  a  single 
force  temperance  law  ! 


PAUPERISM.     TABLE  No.  4. 
Comparison  of  Aggregates  for  the  State,  in  1837  and  1838 


I       Whole    -oof  I'aupers      |       intemperate      |      Foreigners      |       i  xpenses 


In  1838 


15,069 


ci,96'2 


I 


3,290 


I 


.  '25,087 


In  1837 


]4,i-99 


6,673 


•2,870 


306,548 


Ditleience  against  1838 


97  U 


2tf9 


420 


$18,439 


Decrease  of  expense  in  Suffolk  and  Franklin,  $1,808 

Increase  in  all  the  other  Counties,  $20,537 

fX/3  The  only  towns  in  the  State  which  have  not  a  single  pauper,  are 
Erving  and  Munroe,  in  Franklin  County  ;  one  of  the  most  temperate 
counties,  and  the  most  opposed  to  this  act  of  any  in  the  State. 

Plymouth  is  the  only  county  from  which  full  returns  have  been  made 
for  three  years. 

PAUPERISM.     TABLE  No.  5. 
The  Result  in  Plymouth  for  three  years. 


1  County 
3  years 

Whole  -  o 
Poor  1836 

Do 

1837 

Do 

1838 

Intern 
1836 

Do 

1837 

Do 

1838 

Koieign 

1836 

Do 
1837 

Do   ; 
1838  1 

Exp's 
1836 

Do 

1837 

i    Do 
1  1838 

Plymouth     |          39  > 

|    636 

685 

80* 

|      :.01 

|    '291 

|         19             35 

|      35 

1 4,995 

|  17,6,8  | 

19,5  4 

Increase  from 
1836  to  1  39 

295 

211 

16 

$4,519 

*i\ot  stated. 

This  is  one  of  the  most  rigid  prohibitory  Counties,  and  yet  how  unfavor- 
able the  result. 


PAUPERISM.     TABLE  No.  6. 

Boston  Alms  House. 


Year      |         Whole  No  of  Poor         |         Intemperate  No  of  Licenses 


1835 

1,476 

1,107 

300 

1836 

1,270 

825 

385 

1837 

1,443 

1,083 

360 

1838 

1.424 

1,063 

403 

Showing  in  the  city,  wore  there  were  most  licenses  and  freest  sale,  a 
decreaie  since  1835  of  52  poor  in  the  Alms  House  ;  a  decrease  of  39 
intemperates ;  an  increase  of  but  $353  in  expenses;  and  an  increase  of 
108  licenses.  And  all  this  improvement  against  an  increase  of  380  for- 
eigners. 

These  are  the  general  aggregates,  by  State  and  County  estimates,  and  I 
ask  vou,  Gentlemen  of  the  Committee,  if,  with  your  preconceived  notions 
on  this  subject,  derived  from  the  loose  and  hitherto  unquestioned  statistics 
of  the  moral  reform  agents,  you  are  not  prepared  to  say  with  one  of  these 


91 

agents  who  opened  the  reply,  that  "  the  Statistics  on  Pauperism  are  indeed 
overwhelming!" 

But  I  have  not,  said  Mr.  H.  relied  merely  on  aggregates.  I  have  run 
out  the  minutest  details;  applied  it  to  towns,  and  especially  to  every 
town  held  up  here,  as  having  improved  in  pauperism  by  refusing  licenses. 
The  result  is  uniformly  the  same  as  is  here  demonstrated. 


92 


PAUPERISM.     TABLE  No.  7. 

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93 

The  same  results  follow  from  35  towns,  taken  promiscuously,  all  over 
the  state.  The  figures  show  that  in  the  towns  where  licenses  have  been 
hardest  contended  against,  and  prosecutions  most  persevering,  there  is  a 
relative  increase  of  the  ichole  number  of  poor,  and  the  expenses  of  their 
support,  with  a  corresponding  increase  of  intemperate*.  The  reverse  will 
be  very  generally  found,  on  comparison,  in  the  licensing  towns.  Can  this 
be  accidental. 

On  which  side  then  is  the  pauper  argument?  It  is  enough  for  us  to 
sho.v  a  doubt  as  to  the  beneficial  effects  of  this  Act  upon  pauperism.  Tha 
other  side  is  bound  to  prove  it.  They  fail,  and  we  demonstrate  the  nega- 
tive of  the  main  position  on  which  the  whole  pretence  for  the  continuance 
of  this  Act  rests. 

Should  it  be  attempted  to  obviate  the  effect  of  this  perfectly  astounding 
disclosure,  as  to  the  years  preceeding  1837,  from  the  fact  that  before  that 
time  the  poor  were  classed  as  temperate  and  intemperate,  not  including 
wives  and  children  of  intemperate  persons  ;  the  answer  is,  that  there  was 
another  large  column  in  those  years,  under  the  head  of  "not  stated  ;"  and 
even  if  all  these  were  added  to  the  intemperates,  an  increase  of  pauperism 
and  intemperance  would  still  be  shown  in  the  prohit'ting  counties. 

But  the  same  rule  must  apply  to  regulating  as  well  as  prohibiting  Coun- 
ties, and  this  supposed  increase,  by  adding  women  and  children,  is  no  an- 
swer as  to  the  comparatively  greater  increase  of  paupers  and  of  intemperate 
paupers,  in  the  prohibiting  Counties.  Neither  does  it  touch  the  fact  of  the 
increase  of  the  whole  number,  and  of  the  expenses  of  paupers,  nor  in  any 
way  apply  to  the  comparative  returns  of  1837  and  1838. 

Another  important  fact  comes  in.  There  is  an  increase  of  nearly  1000 
paupers  in  1837  over  1839;  and  yet  1837  was  the  year  of  pressure  and 
distress,  when  labor  was  driven  from  its  means  of  support  ;  but  in  1838, 
business  revived,  and  the  able  bodied  who  had  sought  refuge  in  the  Alms 
House,  or  been  aided  by  the  overseers,  were  again  able  to  provide  for  them- 
selves. Consequently  there  would  be  less  poor  supported  in  1833,  growing 
out  of  the  depression  of  business  and  labor,  than  in   1837.* 

So  far  then  as  the  pauper  argument  is  concerned,  if  refusing  licenses 
is  the  test  of  Temperance  it  would  be  easier  from  actual  statistics  to 
show  that  Temperance  increases  pauperism,  than  that  Intemperance  pro- 
duces that  effect.  The  result  is  wholly  unexpected,  and  yet  it  is  soundly 
philosophical.  There  is  something  at  the  bottom  which  those  who  have 
reasoned  on  the  surface  have  overlooked.  It  is  a  law  of  human  nature, 
higher  than  all  human  laws.  Force  produces  re-action.  The  class  of 
men  most  liable  to  pauperism,  but  who  can  sustain  themselves  by  labor 
under  ordinary  circumstances,  will  be  the  more  eager  to  procure  their 
accustomed  indulgence,  the  more  severe  the  laws  are  against  it ;  and  as 
secret  indulgence  is  always  more  seducing  than  open,  they  will  drink  the 
more,  the  more  the  laws  are  made  to  restrain  them.  This  operation  of 
all  sumptuary  laws  may  be  set  down  as  an  axiom  in  political  economy. 

In  addition  to  these  statistics  which  tlemonstrate  that  the  Legislature 
has  no  ground  for  maintaining  the  force  Act  of  1838,  upon  the  pauper 
argument ;  the  evidence  before  the  Committee,  the  increased  importation 
in  Boston,  and  the  enormous  sales  to  counties  where  prohibition  has  pre- 
vailed ;  all  tend  to  the  same  point. 


*  After  this  demonstration,  Mr.  Walcott  attempted  to  get  round  it  by  hinting  that  in 
the  prohibitory  counties,  the  Overseers  must  have  exagcrated!  If  he  is  content  with 
an  argument  which  proves  that  the  supporters  of  the  Act  will  prevaricate  to  sustain  it, 
and  that  the  statistics  of  intemperance  have  been  over-stated,  fur  the  li  pious  fraud"  of 
deceiving  the  public,  as  to  the  truth  of  the  matter;  he  is  welcome  to  all  the  advantages 
he  can  derive  from  such  gross  Jesuitism. 


94. 

The  Committee  rejected  the  evidence  as  to  the  sales  in  Boston  to  be 
sent  to  Bristol  and  other  counties,  but  the  remonstrants  gave  as  a  wit- 
ness, Captain  Taber,  who  more  than  proved  our  rejected  facts.  He 
swears  positively  to  1216  barrels,  or  48,640  gallons,  which  he  freighted 
from  Boston  to  New  Bedford,  in  1838.  He  admits  another  packet,  car- 
ried one  fourth  as  much,  which  makes  60,800  gallons,  besides  what  was 
sent  by  transient  vessels  ;  by  land,  and  also  in  casks  marked  as  wine  and 
vinegar.  The  aggregate  thus  proved  must  exceed  the  70,000  gallons 
.shown  by  the  books  of  merchants  of  Boston  to  have  been  sent  to  Bristol. 

The  result  is,  that  this  pattern  Temperance  County,  with  its  law  of 
prohibition,  has  in  one  year,  consumed  in  a  population  of  58,152  *  up- 
wards of  79,000  gallons  of  spirits,  which  is  Jive  qtiarts  and  one  pint  to  ev- 
ery man,  woman,  and  child  in  the  county. 

'Plymouth,  another  pattern  county,  with  46,253  *  population,  has  also 
consumed  31,000  gallons,  received  from  Boston  alone,  which  is  over  Jive 
pints  for  every  mouth  in  the  county  ! 

Nantucket,  with  9048  population,  has  had  14,000  gallons  from  Boston, 
equal  to  six  quarts,  for  every  mouth  in  that  county  !  And  by  the  showing 
of  the  remonstrants'  witness,  (Mr.  Bacon,)  the  town  of  Sandwich  with 
3579  souls,  where  he  undertook  to  testify  that  none  was  used  but  by  those 
beyond  moral  means,  has  consumed,  in  less  than  half  a  year,  2640  gallons, 
which  is  over  Jive  pints  to  each  inhabitant.  What  a  wide  calculation  in 
this  witness  !  for  either  most  of  his  townsmen  are  "  beyond  moral  influ- 
ence," or  a  few  drink  beyond  all  account  !  Both  views  are  incorrect. 
There  is  no  more  moral  community  in  the  State,  than  that  of  Sandwich. 

These  facts  will  serve  to  show  how  little  reliance  is  to  be  placed  on  the 
o-uesses  of  witnesses  as  to  the  diminution  in  the  prohibiting  counties; 
while  the  pauper  argument  has  been  directly  reversed,  and  proves  con- 
clusively, either  that  the  free  sale  does  not  increase  intemperance,  or  that 
there  is  more  consumed  to  make  paupers,  in  the  prohibiting  than  in  the 
licensing  counties. 

The  extent  to  which  the  zeal  of  some  men  will  carry  them  against 
facts,  was  remarkably  illustrated,  by  Dr.  Alden,  of  Randolph,  who  most 
confidently  testified  that  pauperism  had  decreased  in  his  town,  because 
drinking  had  ;  when  the  returns  of  the  Overseers,  for  four  years,  exhib- 
ited exactly  the  reverse.  Let  that  respectable  witness  learn  to  be  less 
confident,  in  future,  if  he  loves  truth  as  well  as  temperance. 

Judge  Leland,  who  presented  himself  as  a  sort  of  Napolean,  prepa- 
red to  "  subdue  the  dealers  "  in  a  campaign  of  eighteen  months,  was  equal- 
ly unfortunate.  He  declared  that  Foxborough  was  an  example  for  any 
town  in  the  Commonwealth,  and  there  was  no  sale  there.  Yet  in  that 
pattern  town,  pauperism  and  intemperance  have  increased,  while  in  Dor- 
chester and  Quincy,  which  Mr.  Leland  specified  as  places  of  free  sale, 
pauperism  has  decreased.  Roxbury,  with  all  the  facilities  of  Boston,  of 
which  it  is  virtually  the  suburbs,  is  the  only  town  named  in  Norfolk, 
where  pauperism  has  diminished. 

The  District  Attorney,  Mr.  Huntington,  was  equally  unfortunate  and 
incorrect  in  his  estimates.  His  pattern  towns  in  Essex,  have  increased 
their  pauperism  much  more  than  the  towns  he  reprobates  as  still  selling  ; 
and  the  town  which  of  all  others  he  selected  to  test  the  pauper  argument, 
(Beverly,)  makes  one  of  the  worst  exhibits  in  the  whole  official  returns 
to  the  Secretary  ! 

Tenth.  The  remonstrants  further  contend  that  Alcohol  is  the  great 
obstacle  to  all  moral  reforms,  and  therefore  they  must  have  this  force  Act 
to  compel  those  whom  they  cannot  persuade. 

""""Census  of  1837. 


95 

We  prove  that  if  it  be  so,  this  Act  will  but  increase  the  obstacle.  But 
we  also  maintain  that  if  this  Act  is  to  be  pushed,  there  will  he  found  in 
active  ferment,  a  worse  than  physical  alcohol  to  stimulate  excited  men  to 
unjust  and  injurious  acts, — the  alcohol  of  bigotry  and  misdirected  zeal  ! 

Dr.  Johnson  has  described  the  mad  philosopher  in  Rasselas,  as  really 
believing  that  he  controlled  the  physical  elements.  The  gentleman  who 
opened  this  cause  for  the  remonstrants,  (Mr.  Crosby,)  most  complacently 
represented  himself  at  the  head  of  his  Society,  as  controlling  all  the 
moral  elements  ! 

"  We  must  contrive  to  make  the  world  better  !  "  he  exclaimed.  "  These 
great  benevolent  operations  are  under  the  direction  of  different  Societies 
who  are  appointed  to  carry  them  forward,  and  we  must  have  a  virtuous 
community."  Meaning,  no  doubt,  "  peaceably  if  they  can  hut  forcibly 
if  they  must !  " 

If  they  must  have  it,  of  course  they  must  have  force  laws  to  compel  men 
to  come  into  their  creeds;  and  thus,  in  effect,  we  are  told,  that  the  moral 
reform  associations  chiim  to  be  a  political  power  in  the  State,  the  su- 
preme lawgivers  upon  men's  beliefs  and  appetites,  and  the  great  moral 
regulator!  This  is  in  fact  the  political  struggle  now  going  on  ;  whether 
these  irresponsible  Societies  or  the  people  shall  control  the  Legislature. 

This  is  seen  in  the  secret  movements  of  Temperance  Societies  and 
Conventions ;  an  extraneous  power,  which  has  directly  interfered  in  po- 
litical action,  and  brought  about  and  sustained  this  law,  by  a  systematic 
course  of  dictation  and  intimidation,  to  operate  upon  the  Legislature. 

When  before  did  Conventions  assemble  in  the  Capital,  simultaneously 
with  the  Legislature,  and  pass  resolves  in  relation  to  a  measure  before 
that  body,  denouncing  all  who  should  oppose  that  measure  as  recreant  to 
their  oaths  and  to  virtue  !  Such  was  the  political  action  of  the  temper- 
ance Convention  of  last  year  which  got  up  this  obnoxious  Act,  and  such 
has  been  their  course  at  this  session,  to  force  the  Legislature  up  to  sus- 
taining the  law.  A  high  public  officer,  the  District  Attorney  of  Essex, 
was  the  instrument  used  to  denounce  all  men  in  the  Legislature  who 
should  not  come  up  to  the  standard  of  the  new  creed  in  voluntary  mor- 
als ;  and  he  confes  here  as  a  witness  to  enforce  the  instructions  of  the 
Convention  upon  the  Legislature  :  a  Convention,  Mr.  Chairman,  of  pro- 
fessing Christian  men,  who  did. not  hesitate  to  pass  a  vote  of  censure 
upon  the  author  of  Christianity  himself!  for  they  impiously  declared 
that  it  was  immoral  to  manufacture  or  sell  intoxicating  liquor  to  be  drank  ; 
when  they  knew  that  the  first  miracle  of  the  Saviour  was  to  make  intox- 
icating liquor  out  of  water,  to  be  drank  at  a  feast  !  * 

Neither  did  the  Saviour  seek  to  promote  one  good  alone,  as  do  the 
modern  moral  reformers  who  absorb  all  other  benevolent  objects  in  this 
war  upon  alcohol,  in  particular  forms,  and  when  used  by  particular  class- 
es of  men.      The  purest  moral  reformer  the  world  ever  saw,  went  about 


*  It  was  said  of  the  Pharisees  of  old.  by  him  who  spake  as  never  man  spake, — "  The 
Son  of  Man  came  eating1  and  drinking,  and  ye  say  of  Him,  behold  a  gluttonous  man, 
and  a  icine  bibber,  a  friend  of  publicans  and  sinners;  but  wisdom  is  justified  of  her 
children." 

The  modern  Pharisees,  who  thank  God  that  they  are  better  than  other  men,  (because 
they  drink  wine  and  try  to  enforce  a  law  to  prevent  a  laboring  man  tastinn-  gin,)  need 
not  lay  the  flattering  unction  to  their  souls,  that  they  swallow  no  alcohol.  A  letter 
from  a  French  House,  who  had  been  applied  to  by  a  Boston  firm  to  send  some  pure 
v.'ine,  the  freest  possible  fiom  alcohol,  was  laid  before  the  Committee,  in  which  wai 
this  statement  : 

"  We  have  not  altered  the  prices  of  our  Spanish  wines,  (three  grape  and  two  grape. ) 
The  only  difference  between  the  two  qualities  is,  that  the  first  was  reinforced  with  (en 
gallons  nil,  proof  brandy  per  pipe,  and  the  second  with  only  six  gallons." 


96 

doing  good  to  all  and  denouncing  none  but  hypocrites  ;  inculcating  the 
doctrine  of  encouraging  all  the  virtues,  but  above  all,  charity,  and  not 
persecution.  It  is  this  makes  the  perfect  man.  Contemplating  but  one 
vice  and  studying  but  one  virtue,  makes  the  bigot. 

Lastly,  The  supporters  of  this  Act  maintain  it  must  not  be  repealed, 
because  the  women  are  for  it.  This  statement  is  deceptive.  The  women, 
as  they  ought  to  be,  are  fur  temperance.  Without  looking  into  the  merits 
of  a  particular  law,  they  desire  to  secure  that  end,  and  leave  the  means 
beyond  moral  influence,  to  the  men,  who  us  yet  make  the  laws.  Hence 
the  thirty  thousand  females  who  have  signed  memorials  for  the  law,  are 
merely  duplicates  of  the  signatures  of  their  husbands,  fathers,  and  sons. 

1  am  pleased  with  this  expression  of  their  opinion,  and  I  honor  their 
motives.  They  ask  the  Legislature  to  suppress  intemperance,  if  it  can. 
They  do  not  mean  to  ask  for  an  unjust  and  arbitrary  law  to  favor  the 
rich  and  restrict  the  poor,  and  the  effect  of  which  will  be  to  increase 
intemperance.     They  are  sincere,  but  they  are  deceived. 

I  warn  these  men,  said  Mr.  H.,  who  have  drugged  their  women  and 
children  into  this  party  conflict  about  laws,  that  if  this  Act  be  persisted 
in,  the  time  will  come  when  some  of  these  women  will  upbraid  them  for 
the  ruin  of  fathers,  husbands,  brothers,  sons,  brought  about  by  the  increas- 
ed intemperance,  of  which  this  contest  and  this  law  will  be  the  cause. 

I  rejoice,  said  Mr.  II.,  that  there  is  not  a  female  signature  against  this 
Act.  I  am  glad  that  the  memorialists  have  not  brought  in  their  women 
and  children,  who  might  have  trebled  the  names  on  that  side. 

In  view  of  the  whole  investigation,  then,  what  is  the  conclusion  for 
fair  minds  to  arrive  at  ?  Should  a  doubtful  experiment  be  persisted  in 
on  a  false,  abstract  theory,  to  sustain  the  new  doctrine  of  prohibition;  or 
should  the  settled  maxim  be  again  resorted  to,  that  so  long  as  the  article 
and  the  appetite  exist  among  us,  wholesome  regulation  by  law,  and  moral 
influences,  are  the  only  true  promoters  of  temperance  ? 

Would  it  not  then,  be  the  part  of  wisdom,  of  magnanimity,  to  admit 
the  error  of  this  hasty  step  in  legislation  ?  to  retrace  that  step  ;  to  go 
back  to  wholesome  regulation,  and  there  remain,  until  an  united  commu- 
nity demand  a  change,  or  the  evil  ceases  to  exist,  by  common  consent, 
which  will  he  higher  than  all  law. 

This  Act,  if  continued  in  existence,  must  be  enforced,  or  openly  viola- 
ted. It  can  never  be  enforced,  or  if  at  all,  only  by  a  constant  and  bitter 
conflict.  It  cannot  be  violated,  without  doing  more  injury  than  would 
regulation  and  license.  May  not  the  memorialists,  then,  confidently  hope, 
that  the  Committee  and  the  Legislature,  before  insisting  upon  sustaining 
tiiio  Act,  will  carefully  deliberate,  and  wisely  count  the  cost  ? 


February   19. 

The  sitting  of  the  Committee  was  occupied  by  the  closing  argu- 
ment of  Pei.eg  Sprague,  Esq.,  for  the  remonstrants,  which  has  been 
published  in  pamphlet.  The  20th  was  occupied  by  Franklin  Dexter, 
Esq.,  in  closing  for  the  memorialists,  which  terminated  the  public  hear- 
in  ir. 

C2 


MR.    DEXTER'S 
CLOSING  ARGUMENT  FOR  THE  MEMORIAL. 

Mr.  Chairman.  By  far  the  greater  part  of  your  time  has  been  taken  up 
by  the  Remonstrants,  in  stating  the  evils  of  which  Intemperance  is  the 
cause.  It  was  early  announced  to  them  by  the  memorialists,  that  upon  this 
point  there  would  be  no  controversy.  But  it  realiy  seems  as  if  it  were  the 
design  of  the  Remonstrants  to  drive  them  to  this,  as  the  battle-ground,  by  the 
extravagance  of  their  statements.  But  the  memoralists  will  not  thus  be  di- 
verted from  their  object.  The  question  they  have  submitted  to  the  Com- 
mittee is  simply  whether  this  particular  law  involving  a  new  principle  of 
legislation  is  an  expedient  measure  for  the  restraintof  Intemperance.  They 
will  not,  by  entering  into  a  controversy  as  to  the  extent  of  the  evil,  give  their 
opDonents  the  advantage  of  assuming  to  themselves  the  name  of  the  Tern- 
perance  party — a  name  which  indicates  a  division  such  as  does  not  exist  in 
the  Commonwealth. 

But  though  this  matter  may  pass  without  dispute,  it  is  impossible  not  to 
notice  the  other  proceedings  of  the  Remonstrants,  which  seem  to  have  been 
directed  rather  to  excite  than  to  enlighten  the  minds  of  the  committee  and 
of  the  public*  I  may  safely  say,  that  upon  no  other  occasion  has  a  com- 
mittee of  this  Legislature  heard  such  violent  denunciation  of  individuals, 
and  personal  abuse  as  has  been  poured  out  upon  the  most  respectable  of  these 
memoralists  by  one  of  the  opening  counsel  for  the  Remonstrants.  If  the  in- 
dividual who  used  this  language  were  an  unaccredited  volunteer  in  this 
cause,  his  want  of  decency  would  be  unworthy  of  remark,  but  whatever  be 
his  own  claims  to  consideration,  he  has  stood  here  for  hours,  the  acknowl- 
edged counsel  and  advocate  of  the  Remonstrants,  and  his  ribaldry  has  drawn 
out  neither  rebuke  nor  apology  from  those  for  whom  he  spake.  Really,  sir, 
itseems  as  if  the  memoralists  were  to  be  driven  from  the  exercise  of  their 
mere  constitutional  right  of  petition  by  the  fear  of  personal  injury.  Upon 
the  simple  question  whether  a  particular  law  designed  to  promote  a  cause, 
of  which  they  profess  themselves  to  be  friends,  is  or  is  not  an  expedient 
and  constitutional  exercise  of  power  by  the  Legislature,  the  memoralists  are 
not  permitted  to  state  in  the  most  respectful  terms  their  wishes  and  reasons 
without  being  assailed  with  opprobrious  epithets  and  accusations.  The 
memoralists  come  here  in  the  most  unexceptionable  manner :  they  put  forth 
in  print  the  grounds  of  their  petition,  and  they  employ  counsel  to  enfoice 
them,  who  certainly  cannot  be  accused  of  having  uttered  a  single  personal 
remark,  or  made  a  single  appeal  to  popular  feeling.  They  come  here  call- 
ing themselves  friends  of  temperance,  and  as  such,  asking  for  a  repeal  of  this 
l"w  because  they  think  it  a  violation  of  the  rights  of  individuals  and  dan- 
gerous to  the  common  cause — and  they  are  met  by  those  who  differ  from 
them  in  their  opinions,  with  derision  and  insult.  Their  pretensions  to  what 
they  solemnly  nssert  to  be  their  principles,  are  fiercely  denied  and  derided  ; 
they  are  insulted  in  this  crowded  Hall,  by  the  most  false  and  abusive 
13 


98 

accusations.  The  privacy  of  domestic  life  is  invaded,  and  even  the  sanctity 
of  the  grave  is  not  respected.  The  living — the  honored  and  venerable  liv- 
ing, whom  it  has  pleased  Heaven  to  try  with  affliction,  have  been  taunted 
with  the  infirmities  of  age ;  and  the  dead  who  had  lived  a  century  unre- 
proached,  and  who  might  have  passed  into  Heaven  almost  without  a  change, 
has  been  stigmatized  as  but  a  later  victim  to  intemperance.  Of  these  me- 
moralists,  the  poor  are  sneered  at  because  they  cannot  write  well  enough  to 
please  the  taste  of  the  counsel,  and  the  rich  are  ridiculed  for  their  preten- 
sions of  caring  for  the  poor — Sir,  was  a  great  moral  reform  ever  accom- 
plished by  such  means  ? 

But  not  only  have  the  Remonstrants  attempted  thus  to  excite  popular  in- 
dignation against  the  memoralists,  but  the  most  extraordinary  measures 
have  been  adopted  to  apply  an  external  influence  to  the  deliberations  of 
this  Committee.  We  have  seen  three  Temperance  conventions  held  in  the 
city  during  this  hearing — held  not  in  the  regular  course  of  the  respectable 
societies  that  meet  periodically  on  this  subject,  but  specially  called  for  the 
purpose  of  operating  upon  the  decision  of  this  Committee. 

Sir,  I  beg  the  committee,  I  beg  the  respectable  portion  of  my  opponents 
to  consider  how  fatal  is  this  sort  of  influence  to  freedom  of  debate  and  de- 
cision in  a  Legislature.  The  Jacobin  Clubs  of  Paris  were  not  more  purely 
revolutionary  in  their  character,  whatever  may  have  been  the  difference  in 
their  objects  than  these  attempts  to  overawe  the  Legislature  by  strong  ex- 
hibitions of  popular  feeling.  I  cannot  but  fear  as  well  as  deprecate  the  ef-, 
feet  of  such  measures.  I  cannot  compliment  this  committee  by  pretending 
to  think  them  superior  to  their  influence — no  popular  body  can  be  superior 
to  it.  The  strong  voice  of  a  multitude  will  alarm  some  and  persuade  others 
— The  voice  of  a  mob  is  easily  mistaken  for  the  voice  of  the  people — and 
whatever  may  be  the  personal  respectability  of  these  individuals,  or  the  purity 
of  their  motives — they  are  acting  the  part  of  a  mob  when  they  meet  in 
such  associations  and  anticipate  in  the  language  of  vehement  denunciation 
and  resolutions  the  decision  of  this  question.  It  is  the  spirit  of  a  mob  to 
oppose  the  force  of  numbers  and  of  noise  to  that  of  reason.  Sir,  this  Hall 
is  open  for  all  they  and  their  Counsel  have  to  say  in  favor  of  this  law — 
Here  the  question  is  to  be  decided  and  here  it  ought  to  be  heard  and  here 
alone.  Your  committee  have  listened  with  unexampled  patience  to  all  their 
evidence  and  arguments  relevant  and  irrelevant.  If  they  choose  to  be  heard 
elsewhere  and  before  assembled  multitudes  while  this  question  is  pending, 
what  is  it  but  invoking  popular  excitement  to  overwhelm  the  Committee? 
Why  do  they  call  great  meetings  together  to  resolve  upon  that  which  you 
alone  can  decide  !  Sir,  it  is  excitement  that  they  seek — it  is  agitation — 
and  for  one,  Sir.  I  do  not  believe  in  deciding  great  moral  or  political  ques- 
tions by  excitement  and  agitation.  I  believe  it  may  be  accomplished,  but  I 
do  not  believe  in  its  usefulness  or  propriety. 

But,  sir,  let  us  come  to  the  real  question  before  the  Committee.  Is 
this  particular  law  an  expedient  measure  for  the  restraint  of  intemper- 
ance 1  The  Memorialists  ask  for  its  repeal  upon  two  grounds  :  because 
it  is  unconstitutional,  because  it  is  inexpedient.  Up6n  the  first  of  these 
grounds,  I  shall  not  farther  occupy  the  time  of  the  Committee;  the  argu- 
ment has  been  fully  and  ably  stated  and  needs  not  to  be  repeated.  The 
consideration,  of  this  question,  belongs  more  particularly  to  a  judicial 
tribunal,  after  a  law  has  once  been  passed,  and  I  sinll  not  pursue  it  fur- 
ther. But  I  will  briefly  state  to  the  Committee  what  is  more  proper  for 
their  consideration,  that  grniiting  the  power  of  the  Legislature  to  pass 
luZ  ^w,  it  cannot  consistently  with  the  settled  construction  of  the  Con- 
stitution, Sue  carrried  into  effect  against  the  importer  of  ardent  spirits, 


S9 

and  that  thus  limited  in  its  operation  it  will  be  quite  ineffectual  for  its 
purposes. 

The  power  to  regulate  commerce  has  been  repeatedly  decided  to  be 
exclusively  vested  in  Congress  ;  it  belongs  wholly  to  Congress  and  not  at 
all  to  the  States.  In  the  case  of  Brown  vs  Maryland,  a  law  of  that  State 
was  held  to  be  void  because  it  attempted  to  impose  a  tax  on  sales  of 
imported  merchandize  by  the  importer.  The  power  to  tax,  say  the  Court, 
implies  the  power  to  lay  a  prohibitory  tax,  and  to  prohibit  the  importer 
from  selling,  would  be  prohibiting  the  importation,  and  that  would  be  an 
attempt  to  regulate  commerce,  which  no  State  can  do  directly  or  indi- 
rectly. Now  this  was  the  case  of  a  tax  on  the  wholesale  dealer,  and  the 
direct  decision  of  the  Court  went  no  farther  than  the  necessity  of  the  case 
required.  The  question  will  now  arise  whether  the  same  reasons  do  not 
prevent  the  States  from  prohibiting  the  importer  from  retailing  the  im- 
ported article  :  when  the  Court  was  in  that  case  pressed  by  the  argument 
that  the  construction  adopted  would  prevent  the  states  from  regulating 
the  internal  trade  of  their  own  territory  and  from  raising  taxes  upon 
the  property  of  its  citizens,  the  answer  was,  that  when  the  importer  had 
mixed  up  his  goods  with  the  mass  of  the  property  of  the  State,  they  then 
became  subject  to  taxation  and  regulation  by  the  State — and  as  an 
answer  to  a  particular  argument,  it  was  stated  that  this  would  be  the  case 
if  the  importer  should  break  up  his  packages,  aad  travel  about  with  them 
as  an  itinerant  pedlar — but  no  where  is  it  stated  by  the  Court,  that  by 
the  mere  breaking  up  of  the  packages,  the  importer's  privilege  is  des- 
troyed. It  being  then  settled  that  the  States  cannot  prohibit  the  whole- 
sale of  goods  by  the  importer,  because  that  would  be  a  virtual  prohibi- 
tion of  importing,  how  is  the  retail  sale  by  the  importer  to  be  distinguished 
and  made  subject  to  the  power  of  the  State  ?  Suppose  a  law  were  passed 
in  express  terms,  prohibiting  all  importers  from  selling  any  goods  by  re- 
tail, can  any  one  believe  after  the  decision  of  the  case  of  Brown  and 
Maryland,  and  in  view  of  the  reasons  of  that  decision  that  such  a  law 
would  be  constitutional  1  If  as  the  Court  says,  the  power  to  import  im- 
plies the  power  to  sell,  does  it  imply  only  the  power  to  sell  by  wholesale  ! 
What  ground  is  there  for  this  distinction?  A  prohibition  of  the  whole- 
sale trade  would  not  necessarily  and  totally  preclude  importation,  be- 
cause the  importer  could  still  retail — and  so  a  prohibition  of  the  retail 
trade  would  still  leave  the  power  of  selling  by  wholesale,  but  the  princi- 
ple is  that  the  mporter  shall  not  be  prohibited  from  selling  his  goodsAs  to 
the  time  and  manner  of  sale,  he  is  subject  to  all  wholesome  laws  of  regula- 
tion, but  no  law  of  prohibition  can  be  applied  to  him  ;  to  prohibit 
retailing  is  as  much  of  an  encroachment  upon  his  privilege  of  sale,  as  to 
prohibit  the  wholesale ;  either  can  be  carried  on  without  the  other,  but 
both  are  so  far  necessary  to  the  freedom  of  commerce,  that  the  State  can 
no  more  prohibit  one  than  the  other.  The  true  principle  of  the  decision 
is  found  in  these  words — "  when  the  imported  article  becomes  mixed 
with  the  common  mass  of  property  in  the  State,  then  it  becomes  subject 
to  State  laws."  Now  when  does  imported  merchandize  become  mixed 
with  the  mass  of  other  property  ?  Not  surely  by  merely  opening  the 
casks  or  boxes — it  is  still  as  distinctly  the  imported  article  as  before. 
You  cannot  prohibit  the  importer  from  selling  a  box  of  sugar,  you  can- 
not tax  him  for  the  right  to  sell  it.  Now  suppose  he  opens  the  box  and 
sells  the  sugar  by  the  pound  from  the  box,  can  you  prohibit  him  from 
doing  that  1  Has  he  by  opening  his  box,  without  removing  the  contents, 
"  mixed  them  up  with  the  mass  of  the  property  in  the  State  ?  "  Surely  it 
is  as  distinctly  the  imported  article,  though  half  of  the  sugar  may  have 
been  taken  out-     If  the  power  to  import  implies  the  power  to  sell,  why 


100 

may  he  not  sell  it  in  part9  as  well  as  in  the  whole  I  Or  suppose  the  im- 
porter of  a  15  gallon  cask  of  brandy  puts  a  spigot  into  the  bottom  of  it 
and  draws  off  the  brandy  for  sale  by  the  pint ;  has  this  liquor  that  has 
never  seen  the  light,  been  by  the  mere  insertion  of  the  tap,  mixed  up 
with  the  property  of  the  State  ?  or  is  the  pint  that  is  drawn  out  for  his 
customer,  so  mixed  up  by  being  drawn  out  from  the  cask  that  he  can- 
not sell  it  ?  It  is  plain  that  no  such  sophistry  was  intended  to  be  used 
by  the  Court.  The  true  principle  of  the  case  is,  that  the  importer  has 
acquired  by  the  act  of  importing,  a  personal  privilege  to  sell;  he  acquires 
under  the  act  of  Congress  a  paramount  right  to  sell,  subject  to  regulation, 
but  not  to  prohibition  by  the  State.  What  then  is  prohibition  and  what 
is  regulation  ?  Requiring  a  license  and  a  tax,  was  held  in  that  case  to 
be  virtually  a  prohibition,  and  not  a  regulation  merely,  because  all  were 
permitted  to  sell,  hut  subject  to  a  tax  which  might  be  increased  until  it 
amounted  to  a  prohibition.  But  any  state  law  which  is  fairly  a  law  of  mere 
regulation,  like  the  old  license  law,  may  be  applied  as  well  to  the  impor- 
ter, as  to  the  purchaser  from  him.  The  State  has  never  parted  with  its 
right  to  regulate  its  own  internal  trade,  but  it  has  completely  surrendered 
all  power  of  regulating  external  commerce.  It  may  therefore  prescribe 
what  rules  it  sees  fit  for  the  mode  of  conducting  sales,  as  well  by  the  im- 
porter as  others,  but  it  cannot  prohibit  or  limit  his  right  to  sell  that  which 
the  law  of  the  United  States  gives  him  a  right  to  import  for  sale.  It  may  not 
always  be  very  easy  to  distinguish  the  cases — because  regulation  may  be 
made  so  strict  as  to  amount  to  prohibition,  but  when  a  law  is  avowedly 
prohibitory  in  its  object  and  intent,  it  is  plain  that  it  cannot  be  applied 
to  the  importer. 

Now  the  law  under  consideration  is  most  unquestionably  a  prohibitory 
act.  It  contains  a  new  and  odious  feature  not  to  be  found  in  any  of  the 
former  Jaws,  for  it  in  terms,  and  absolutely  prohibits  the  retail  trade  in 
spirit  for  drink.  It  prohibits  it  to  all  and  under  all  circumstances.  Upon 
this  point  indeed  our  adversaries  are  not  agreed  among  themselves.  One 
claimed  this  uovelty  as  a  great  merit  in  the  law,  and  the  other  as  strenu- 
ously denied  it.  We  take  no  admission  on  this  po  nt,  there  is  no  need  of 
it.  The  former  laws  distinctly  permitted  certain  licensed  persons  to  sell 
spirit  at  retail  for  drink,  this  law  prohibits  any  and  all  persons  from  so 
doing.  There  is  a  clear  clifference  in  principle.  One  law  declares  the 
trade  lawful  and  licenses  it :  the  other  prohibits  and  punishes  it  altogether. 
It  is  idle  to  say  that  the  principle  is  the  same  in  both.  A  very  feeble  at- 
tempt has  been  made  to  assimilate  them  by  stating  the  old  law  as  a 
prohibition  to  all  but  the  licensed  persons.  But  let  the  gentlemen  who 
use  this  argument  adopt  their  own  mode  of  illustration  and  see  how  the 
question  will  stand.  Certain  vices  which  I  need  not  here  particularly 
name,  are  now  prohibited  by  law.  Suppose  a  new  law  were  passed 
licensing  certain  houses  for  the  indulgence  of  them,  would  the  gentleman 
say  that  this  introduced  no  new  principle  ?  would  they  consider  the  Leg- 
islature who  should  pass  such  a  law  of  sanction  and  regulation  as  acting 
upon  the  same  principles  with  their  forefathers  who  denounced  and  pun- 
ished the  same  vice  in  every  place  and  under  every  form  ?  I  do  not  agree 
that  the  cases  parallel,  though  they  have  been  so  stated  in  another  part  of 
the  argument  where  they  clearly  are  not  so  as  I  shall  have  occasion  to 
show,  but  the  difference  between  them  does  not  apply  to  this  particular 
question.  To  prohibit  a  practice  altogether,  and  to  permit  it  to  certain 
licensed  individuals,  is  equally  a  difference  in  principle  of  legislation, 
whether  the  practice  be  in  itself  a  crime  or  not,  but  whether  it  be  a  crime 
or  not,  is  a  most  effectual  ingredient  in  the  question  of  the  expediency 
of  its  total  prohibition.     I  need  not  pursue  this  argument.     No  one  can 


101 

seriously  doubt  that  this  law  presents  an  entirely  new  question  of  princi 
pie,  if  the  quantity  in  which  alone  the  sale  is  permitted,  be  admitted 
practically  to  operate,  or  to  be  intended  to  operate  as  a  prohibition.  The 
intent  to  prohibit  makes  the  difference  ;  whether  it  is  successful  or  not  is 
immaterial  to  the  principle.  That  the  intention  is  not  to  regulate,  but  to 
prohibit,  the  drinking  of  ardent  spirit,  neither  of  the  counsel  has  been 
uncandid  enough  to  deny.  Indeed  the  whole  argument  proceeds  upon 
the  supposition  that  it  is  so.  The  selection  of  fifteen  gallons  as  the  limit, 
clearly  shows  this,  as  that  quantity  is  the  least  in  which  by  the  laws  of 
the  United  States  brandy  can  he  imported.  It  was  therefore  the  highest 
limit  the  Legislature  could  assume  without  coming  in  conflict  with  the 
right  of  the  importer  of  the  liquor,  as  settled  by  the  Supreme  Court  of 
the  United  States.  As  far  as  they  could  go,  therefore,  without  introdu- 
cing a  distinction  between  different  kinds  of  spirit,  the  Legislature  has 
gone  entirely  to  prohibit  the  retail  trade.  This,  then,  is  a  law  of  prohi- 
bition, while  the  old  License  law  was  no  more  a  law  of  prohibition  than 
the  law  requiring  Auctioneers  to  be  licensed,  was  a  prohibition  of  auction 
sales.  It  attempts  for  the  first  time  to  prohibit  the  retail  trade  in  spirits 
as  drink,  to  all  persons  and  in  all  places.  And  although  the  law  should 
be  thought,  notwithstanding  the  other  objections,  to  be  constitutional, 
it  is  still  inapplicable  to  the  case  of  the  importer. 

Now  of  what  value  is  this  law  if  every  one  can  retail  at  pleasure 
who  can  import  90  gallons  of  rum  from  the  West  Indies,  or  15  gallons 
of  brandy  from  France  ?  But  the  difficulty  does  not  stop  here.  Con- 
gress has  the  same  exclusive  power  to  regulate  commerce  between  the 
States  as  with  foreign  nations,  and  that  commerce  may  be  carried  on  by 
land  as  well  as  by  water.  Following  out  the  principles  of  the  case  of 
Brown  and  Maryland,  any  one  who  imports  a  barrel  of  New  England 
rum  from  a  neighboring  State,  by  land  or  by  water,  may  retail  it  at  plea- 
sure. If  the  principle  be,  as  stated,  that  to  restrict  the  sale  by  the  im- 
porter is  an  encroachment  on  the  power  of  Congress,  and  that  this  priv- 
ilege continues  until  the  property  loses  its  distinctive  character  as  an 
import,  it  is  plain  that  any  one  may  easily  qualify  himself  to  be  a  re- 
tailer. I  am  aware  of  the  difficulties  this  doctrine  may  seem  to  involve  ; 
but  there  would  he  on  the  other  hand  great  difficulties  in  any  other  con- 
struction. If  one  State  could  prohibit  the  retail  trade  in  the  products  of 
another  State,  they  might  in  that  way  carry  on  the  commercial  warfare 
which  the  Constitution  intended  especially  to  prevent.  Suppose  that 
South  Carolina  should  choose,  in  her  zeal  against  the  tariff,  to  exclude 
our  cotton  cloth  from  her  territories,  could  she  not  virtually  accomplish 
this  by  prohibiting  the  retail  trade  in  them,  if  such  a  prohibition  were 
not  restrained  by  this  construction  of  the  Constitution  ?  But  this  con- 
struction prevents  her  from  imposing  any  such  prohibition  on  the  import- 
ers, so  that  she  could  at  most,  only  make  it  more  inconvenient  to  obtain 
the  goods  by  any  law  that  she  could  pass.  It  would  seem,  therefore,  not 
only  that  this  privilege  of  the  importer  from  another  State  comes  with- 
in the  principle  of  the  decision,  but  that  it  is  quite  necessary  to  prevent 
the  States  from  virtually  legislating  to  exclude  each  others  products  from 
their  respective  territories. 

But,  Sir,  I  do  not  consider  the  constitutional  difficulties  to  be  the 
strength  of  the  memorialists  case.  The  injustice  and  inequality  of  this 
law,  and  its  utter  inexpediency  as  a  temperance  measure,  seem  to  me 
still  stronger  objections  before  the  Committee. 

The  memoralists  contend  that  this  law  is  unequal  in  its  principle  and 
its  intent.  It  is  one  law  for  the  poor  and  another  for  the  rich.  It  makes 
the  worst  possible  distinction,    that  of  one  who  can,  and  one  who    can- 


102 


not  afford  to  be  intemperate.  It  denies  it  as  a  luxury  to  the  poor  and 
permits  it,  to  the  rich — instead  of  denying  it  to  all  as  a  criminal  indul- 
gence. If  a  man  may  not  buy  a  single  gallon  of  spirit  drink  for  why 
should  he  be  allowed  to  buy  fifteen  gallons  1  The  only  auswer  that  can 
be  given  is,  that  it  is  more  difficult  to  buy  fifteen  gallons  than  one,  and 
that  therefore  spirit  drinking  will  he  restrained  and  diminished.  But 
why,  and  to  whom  is  it  more  difficult  to  obtain  fifteen  gallons  I — 
Simply  because  the  greater  part  of  those  who  drink  are  too  poor  to  buy 
the  larger  quantity-  As  to  those  who  can  buy  it,  it  is  no  prohibition  at 
all — to  those  who  cannot,  the  prohibition  is  absolute.  Is  this  equal  1  It 
is  to  be  observed  that  this  prohibition  is  not  aimed  at  dram-drinking  in 
the  shop.  A  miniinum  of  a  quart  or  a  gallon  would  prevent  this  as  well 
as, .one  of  fifteen  gallons;  but  the  design  is  to  prevent  its  being  bought 
and  carried  away.  Now  as  fifteen  gallons  is  a  quantity  that  can  be  car- 
ried away  without  any  great  inconvenience,  this  law  really  operates  in  this 
particular  only  upon  those  who  cannot  pay  or  be  trusted  for  fifteen  gal- 
lons at  a  time.  It  prohibits  all  from  drinking  at  the  counter,  but  permits 
ihose  to  carry  away  liquor  who  can  pay  for  it,  and  prohibits  the  same 
thing  to  those  who  cannot.  As  far  as  this  law  prohibits  drinking  at  the 
counter,  which  is  the  great  evil,  in  cities  at  least,  it  is  equal  to  all.  But 
so  far  as  it  restrains  the  buying  to  carry  away,  it  takes  the  most  odious 
and  unjust  distinction.  It  leaves  to  the  rich  sot  unlimited  liberty  of  in- 
temperance, while  it  prohibits  the  poor  from  the  most  moderate  indul- 
gence. Now  Sir,  this  is  not  regulation — it  is  a  most  unequal  prohibition. 
Various  examples  have  been  put  by  the  Remonstrants  to  show  that  this 
law  is  not  more  unequal  than  others ;  but  there  cannot  be  found  an  in- 
stance in  the  whole  statute  book  of  such  inequality. 

In  the  first  place  it  was  said  that  the  old  license   law   was  as    unequal    as 
this  because  though  all  could  buy  under  it, yet  all  could  not  sell-but  the  dis- 
tinction is  very  plain.      The  right  of  regulation  is  universally  admitted, but 
there  can  be  no  regulation  without    restraint,  and    that    restraint    must   be 
partial — all  cannot  be  licensed  retailers  or  auctioneers,  but  then  all  have  an 
equal  chance   and  right  to  be  so.     The   rich   man    is   not  preferred  to  the 
poor  man-bonds  are  required  it  is  true  which  may  be  more  inconvenient  to 
the  poor  than  to  the  rich  man.     But  the  object  of  requiring  bonds  is  not  to 
disable  or  discourage  the  poor   from   being  retailers,  but  for  the  necessar/ 
security  of  the  public  against  disorder.     Then  it  is  said  that  the  Tariff  is  a 
law  as  unequal  as  this  because    it  enhances  the  price  of  broadcloth  so  as  to 
place  it  beyond  the  reach  of  the  poor.      Bat  what  inequality  is  there  in  this  ? 
A!!  duties  and  excises  necessarily  enhance  the  priceof  the  article  to  the  poor 
as   well  as  to  the  rich  ;    but    to    avoid  this    unequal   operation,  the    higher 
qualities  of  it  are  taxed  more   in  proportion  than  the  lower.     The  poor  man 
pays qu the  coarse  fabric  which  lie  must  wear  with  or  without  a  tarhTaless 
rate  of  duty  than  the  rich  pays  on  his  finer  cloths.   The  rich  pays  a  higher 
tax  upon    his   dress    than  the  poor  man    fully   in    proportion    to   its   better 
quality.      Nay, the  very  object  ofthe  tariff  and  its  actual  operation,  has  been 
by  encouraging  the  manufacture  ofthe  coarser  fabrics  to  reduce  their  price 
below  what  it  could  be  imported  for.   Under  its  operation  the  poor  man  now 
gets  a  shirt  for  half  what  it  used  to  cost  him,  and  to  enable  him    to  do  so 
the  rich  man  pays  an  enhanced  price    for  every  article   he   wears.     Every 
provision  of  the  tariff  is  especially  favorable  to  the  poor.      When  gentlemen 
say  there  is  no  inequality  in  this  law  let  them  only  apply  it  to  some  other  arti- 
cle of  consumption — Suppose  a  law  made  to  prohibit  the  retail  trade  in  cot- 
ton cloi't.     Fifteen  gallons  of  rum  it  is  said  costs  $G,   and    we    are    asked 
where  is  the  poor  man  that  cannot  find  $6  to  buy  it  with.  'Not  an  able  bodied 
man  in  Massachusetts'  it  is  said  'who  cannot  at  pleasure  purchase  this  quan- 


103 

tity.'  Sir,  this  sum  ol  $6  will  buy  nearly  a  hundred  yards  of  coiton  shirt- 
ing, but  would  it  be  no  hardship  upon  the  '-able  bodied"  poor  man  to  he 
retrained  bylaw  from  buying  less  than  100  yards  of  shirting?  Would 
$6  in  that  case  be  thought  so  very  trifling  a  sum  as  to  make  the  inequality 
nearly  nominal  ?  "Not  one  of  that  class  of  able  bodied  poor"  says  the 
Counsel  "would  be  disabled  by  this  law  from  purchasing  spirit."  I  do  not 
wonder  Sir  that  the  poor  ofother  countries  think  this  a  land  of  ease  and  plen- 
ty, when  the  starving  creatures  hear  my  learned  friend  solemnly  state 
that  not  the  poorest  laborer  in  Massachusetts  but  what  has  his  pound  ster- 
ling in  his  pocket  to  purchase  spirit  "at  pleasure."  I  wish  the  fact  was  so 
as  to  the  necessaries  of  life.  This  paltry  sum  of  $6  that  every  able  bodied 
man  can  spend  "at  pleasure"  for  rum, would  relieve  many  a  poor  family  in 
the  state  from  want  and  nakedness.  Understand  me,  Sir,  I  do  not  claim 
for  the  poor  or  for  the  rich  the  same  facility  for  buying  rum  as  for  buying 
food  and  clothing.  Tax  it  if  you  think  it  ought  to  be  restrained,  tax  it 
heavily,  if  you  please,  but  tax  it  proportionally — put  the  same  tax  on 
the  poor  man's  N.  E.  Rum  or  Whiskey  as  on  the  rich  man's  Cognac 
and  Jamaica.  Give  no  facilities  to  the  rich  and  impose  no  disabilaties  on 
on  the  poor — Deal  in  your  wisdom  with  the  whole  subject  but  deal  equally 
to  all.     And   if  you  will  pass  prohibitory  laws  prohibit  every  one  alike. 

There  is  one  more  example  of  the  supposed  inequality  ol  the  law,  which 
has  been  dwelt  on  with  great  emphasis,  as  an  argument  for  this  ;  it  requires 
especial  notice  for  the  boldness  of  the  language  in  which  it  was  put  forth, 
and  for  its  utter  unsoundness.  I  will  state  it  in  the  language  of  the  counsel 
whom  I  select  as  representing  the  opinions  of  the  sounder  portions  of  the 
Remonstrants. 

"  Take  even  that  desire  which  has  been  imparted  by  the  Author  of  our 
Being,  for  the  continuation  of  the  species,  not  an  artificial,  but  a  natural  and 
necessary  appetite.  As  to  this  too,  you  give  the  law.  What  von  permit  is 
lawful,  what  you  forbid  is  unlawful,  and  yon  absolutely  inhibit  its  indul- 
gence, unless  a  man  will  take  to  himself  a  wife  to  be  supported,  not  fifteen 
years  merely,  but  for  life.  Is  this  obstacle  to  indulgence  equal  to  the 
rich  and  the  poor?  By  the  one  it  is  easily  overcome;  to  the  other  it  is 
often  insurmountable.  And  would  these  gentlemen  ask  you  to  deal  out 
matrimony  in  smaller  doses;  to  render  it  lawful  for  a  man  to  take  a  wife 
for  fifteen  years,  or  fifteen  days!"  Again — "  may  you  not  restrain  ap- 
petite wherever  the  good  of  society  requiresit  '?  A  wretch  has  an  appetite 
for.  the  wife  or  daughter  of  the  Remonstrants!"  &c. 

I  do  not  bke  this  topic  as  a  subject  of  public  discussion.  I  would,  for 
the  sake  particularly  of  some  whom  I  see  among  this  audience,  jr'Iadlv  avoid 
it.  But  it  has  been  repeatedly  stated  as  an  argument  in  favor  of  this  law, 
that  the  brothel  and  the  retail  shops  stood  on  the  same  ground  as  public 
evils.  And  more  especially,  as  the  argument  is  now  put  forward  in  its  most, 
specious  form,  by  the  ablest  counsel  of  the  Remonstrants,  it.  must  be  an- 
swered in  plain  language.  I  take  it.  Sit,  that  those  who  use  this  last  ar- 
gument, believe  it  sound,  or  they  would  not  utter  it  Now  what  is  it  briefly 
stated  ;  just  this,  that  you  have  the  same  right  to  restrain  the  drinking  of 
spirits,  that  you  have  to  restrain  fornication  and  adultery — nay  the  language 
nsed,  would  as  well  include  the  crime  of  rape.  The  same  right  to  restrain  ! 
Then  you  may  restrain  by  the  same  means;  you  may  punish  the  one  as 
well  as  the  other.  I  do  not  mean  to  the  same  degree — but  they  are  equally 
proper  subjects  of  punishment.  And  this  is  the  answer  seriously  given 
to  the  complaint  that  this  law  undertakes  to  regulate  the  appetite  ?  Why, 
what  possible  analogy  is  there  between  the  two  cases?  Will  such  ex- 
travagant overstatements  convince  the  sober  minded  people  of  this  State  ? 
Because  you  can  hang  the  wretch  that  brutally  violates  your  wife  or  your 


104 

daughter,  can  you  fine  and  imprison  the  man  that  mingles  a  drop  of  ardent 
spirit  with  his  water  ?     1  know  this  law  does  not  attempt  to  punish  the 
drinking  of  spirit ;  but  the  argument  claims  the  right  to  do  it — it  puts  it 
plainly  on  the  same  ground   as  to  that  right   with   the    most  attrocious 
crimes.     And  this  argument  has   been  stated  here  over   and  over  again, 
in  every  variety  of  form,  as  if  it  would  bear  the  severest  scrutiny.     But 
is  there  not  this  plain  distinction  between  the  cases,  that  one  is  a  crime  and 
the  other  is   not  ?  But  both,  says  the  counsel,  are   appetites,  and  if  one 
may  be  restrained  by  law,  so  may  the  other.     Sir,  are  the  appetite  for 
crime  and  the  appetite  for  food   the   same  things  2  both  are  appetites — 
that  is,  both  are  desires,  and  the  argvranent  is  that  if  one  desire  may  be 
restrained  so  may  another.     Now  Sir,  is  it  nothing  that  the  voice  of  God 
lias  forbidden  one,  and  that  the  other  is  a  crime  only,  when  made  so  by 
this  very  statute! — "What  you  permit  is  lawful,  what  you  forbid  is  un- 
lawful."    The  law  then  is  to  be  justified  by  itself — it  first  makes  the  indul- 
gence of  appetite  a  crime,  and  then  claims  the  right  to  punish  it    because  it 
is  a  crime.     Sir,  there  is  a  distinction  between  right  and  wrong  established 
by  higher  authority  than  that  under  which  you  sit  here,   and    the    analogy 
that  confounds  the  law  of  God  and  the  law  of  the    Legislature,  is    of   very 
little  value.   As  to  the  one  the  power  ot  the  Legislature  is  simply  declaratory 
so  far  as  it  points  out  the  right  and  the  wrong  ,  as  to  the  other  it  makes    a 
distinction  purely  of  its  own.      Fornication,  adultery  and  rape  have  been  de- 
clared to  be  crimes  by  the  voice  of  God,  and  no  legislation  can  make  them 
lawful — restraint  of  these  is  not  only  the  restraint  of  appetite,  but  is  the  re- 
straint of  crime — the  restraints  of  this  law  are  restraints  of  appetite  merely. 
• ;,  Will  the  gentlemen  compel  me  to  state  the  true  analogy  of  the  two  cases? 
and  if  I  must  offend  against  propriety  in  so  doing,  I  do  it  not  voluntarily, 
but  because  our  adversaries  have  compelled  me  to  it.     The  appetite  tor 
spirit  is  compared  with  the  sexual   appetite,   and  the  law  which  in  effect 
prohibits  the  use  of  spirit  to  the  poor,   is  said  to  be  of  the  same  charac- 
ter with  that  which  prohibits  to  all  the  irregular  indulgences  of  the  sexu- 
al passion.     Now  Sir,   having  shown  the  dissimilarity  of  the   cases,  as 
stated  by  the  remonstrants,   let  me  show  them   what  law  relating  to  the 
sexes  would  be   analogous  to  this   relating  to  the  use  of  ardent  spirits. 
This  law  restrains  the  use  of  ardent  spirits  not  before  criminal — that  is, 
it  restrains  all  use  of  it.     Suppose  a  law  were  passed  restraining,  not  the 
irregular  indulgence,  but  all  indulgence  of  the  sexual  appetite.     Suppose 
the  Legislature  should   undertake    on  this  subject  to  restrain  that  which 
God  has  permitted,   and  the  regulation  of  which  has  been  left  to  man's 
private  discretion.     That  would  be  what  the  memorialists  mean  by  a  law 
in  restraint  of  appetite — not  only  of  an  appetite  lawful  in  itself,  but  of  a 
lawful  indulgence  of  it.     Would  the  remonstrants  acquiesce  in  such  sort 
of  legislation    upon  their  domestic   affairs  1     And  if  they  complained  of 
it,  would  they  be  satisfied  with  being  told,  that  as  the  Legislature  has  the 
power  to  restrain  the  appetite  for  being  drunk,   and  this   is  but  another 
appetite,  this  may  be  restrained  too  ?   Would  they  not  see  in  such  a  case, 
the  wide  difference  between  a  simple  appetite  and  an  appetite  for  crime  ? 
Equally  fallacious  is  the  argument  drawn  from  the  institution  of  mar- 
riage, as  it  affects  the  rich  and  the   poor.     A   prohibition    of  selling  that 
quantity  of  spirit  that  comes  within  the   means   of  the  poorest,  is  com- 
pared to  the  law  prohibiting  fornication  and  adultery  to  those  who  can- 
not maintain  a  wife  for   life.     We  are  tauntingly  asked  if  matrimony  as 
well  as  spirit  should,  for  equality's  sake,  be  dealt  out  in  "smaller  doses," 
that,  the   poor  may  enjoy  it  as  well  as  the  rich.     Sir,  this   cannot    have 
been  as  seriously  said,  as  the  occasion  required.     Do   the  gentlemen  see 
nothing  in  the  institution  of  matrimony  but  licensed  lust  1  Do  they  not  see 


105 

the  difference  between  a  promiscuous  and  beastly  appetite,  and  the  most 
refined  passion  of  our  nature  ?  Do  they  consider  a  wife  as  a  mere  para- 
mour for  life?  Do  they  count  for  nothing  that  sentiment,  the  tenderest 
of  all  associations,  that  binds  hearts  as  well  as  persons  together  for  life, 
and  makes  them  dread  death  less  for  its  own  terrors,  than  because  it 
divides  them  ?  "Smaller  doses  of  matrimony  !"  What  can  those  think  of 
matrimony  who  talk  thus  of  it  in  argument — or  even  in  jest,  if  they  are 
jesting  on  so  serious  a  subject  ?  Sir,  they  do  not  mean  matrimony  ;  they 
mean  something  very  different  from  it ;  and  when  they  ask  if  we  would 
have  smaller  doses  of  that  thing  dealt  out,  we  answer  we  would  have  it 
in  no  quantity  whatever.  They  might  as  well  ask  us  if  we  would 
have  drunkenness  dealt  out  in  smaller  doses ;  our  answer  to  that,  would 
be,  that  Ave  want  neither  drunkenness  nor  lust,  but  we  want  rational 
liberty  and  equality  for  all,  in  the  indulgence  of  the  appetite,  that  God 
has  made  it  innocent  to  indulge  in  moderation  ;  and  in  both  cases  we 
want  no  legislative  interference  in  the  regulation  of  it» 

But  besides  the  inequality  of  the  law  in  prohibiting  the  sale  of  small 
quantities  of  spirit,  it  is  also  grossly  unequal  in  permitting  the  sale  of  wine 
in  any  and  all  quantities.  Wine  is  an  intoxicating  liquor  as  well  as  rum, 
but  wine  is  the  drink  of  the  rich  man,  and  rum  of  the  poor.  Wine  is  not, 
nor  ever  can  be,  in  this  country,  the  drink  of  the  poor — our  own  soil 
produces  none,  and  the  charges  of  importation  make  it  too  dear  for 
them.  Now,  Sir,  this  law  leaves  the  rich  man  the  unlimited  use  in  the 
smallest  quantities  of  his  refreshment  or  his  poison,  if  the  gentlemen  who 
lecture  on  this  subject,  choose  to  call  it  so,  and  denies  to  the  poor  that 
which  alone  he  can  afford  to  buy.  In  regard  therefore  to  kind,  as  well 
as  to  the  quantity  permitted  to  be  sold,  it  is  unequal.  A  gentleman  and 
a  poor  man  may  meet  in  a  tavern  at  night,  having  travelled  through  the 
same  storm  during  the  day — cold,  wet  and  weary — the  gentleman  calls 
for  his  glass  or  his  bottle  of  wine,  and  the  landlord  is  happy  to  serve  him 
in  any  quantity.  The  poor  man  calls  for  his  glass  of  rum  and  water, 
and  is  told  that  he  cannot  have  less  than  15  gallons.  Now  Sir,  even  if 
it  were  true  that  every  able  bodied  man  in  the  State  can  pay  for  15  gal- 
lons, it  would  be  rather  a  hardship  to  have  to  pay  for  that  quantity  when 
he  was  travelling  and  could  not  carry  it  away  with  him.  If  he  cannot 
pay  for  wine  he  must  be  content  with  water,  even  when  exposure  to  wet 
and  cold  seems  to  him  to  require  something  a  little  more  stimulating. 
No  doubt  my  friends,  Dr.  Pierson  and  Dr.  Channing  would  tell  him  if 
they  happened  to  be  present,  that  water  was  much  better  for  him,  but 
even  if  he  could  have  their  advice  for  nothing,  he  might  still  think  it  a 
hardship  that  he  could  not  take  his  own,  as  to  what  he  should  eat  and 
what  he  should  drink.  Not  even  in  case  of  sudden  sickness,  can  a  tav- 
erner  sell  a  glass  of  spirit,  and  not  even  the  temperance  doctors  will  tell 
us  that  there  are  not  cases  in  which  life  may  be  preserved  by  it.  To  pass 
one  moment  from  the  irregularity  of  the  law,  look  at  the  hardships  it 
may  impose  upon  every  one.  We  all  know  that  in  country  towns  there 
is  no  apothecary,  and  the  physician  often  lives  at  a  great  distance  from 
the  tavern — now  if  a  feeble  person  in  travelling  actually  needs  a  little 
spirit  even  as  medicine,  this  law  effectually  prohibits  his  getting  it.  Un- 
der such  circumstances,  who  would  not  feel  that  it  was  intermeddling 
Avith  that  which  ought  to  be  left  to  every  man's  own  discretion  1 

I  know  of  no  law  that  will  bear  a  comparison  with  it.  It  puts  the  whole 
community  under  guardianship,  because  the  intemperate  cannot  be  trust- 
ed with  liquor.  It  denies  to  all  the  discretion  of  using  that  which  non« 
but  fanatics  can  deny  to  be  often  useful,  because  some  will  abuse  it.  It 
is  inconsistent  with  the    whole  spirit  of  our  political  institutions.     It 

14 


106 

►  - 

Would  be  absurd  anywhere,  but  here,  it  is  ridiculous.  A  people  that  are 
trusted  by  their  Constitution  with  the  complete  power  of  self-government, 
in  politics,  cannot  be  trusted  with  self-government  in  their  diet.  They 
may  choose  whom  they  will,  every  year,  to  make  their  laws,  and  admin- 
ister them,  and  may  even  change  their  whole  original  civil  compact  of 
government  at  pleasure ;  and  yet  they  cannot  be  trusted  to  buy  what 
they  choose  to  drink,  lest  they  should  drink  too  much  of  it.  Sir,  this 
cannot  continue  to  be  the  law  of  this  Commonwealth — the  time  will 
come,  and  very  shortly,  if  it  has  not  come  already,  when  it  will  be  seen 
to  be  a  departure  from  the  first  principles  of  our  government.  I  am  not 
surprised  that  it  should  have  been  passed  ;  because  when  all  know  that 
what  is  done  this  year  may  be  undone  next,  no  one  fears  to  try  even  the 
wildest  experiments.  Such  a  law  could  only  be  passed  in  the  very  wan- 
tonness of  liberty.  That  it  will  be  repealed  is  certain,  but  whether  it 
shall  be  now  taken  away  before  it  has  united  itself  firmly  with  other  val- 
uable laws,  or  whether  it  shall  be  suffered  to  remain  until  the  whole  sys- 
tem of  legislation  on  this  subject  will  go  with  it  is  a  question  of  deep 
interest  to  the  community. 

But  supposing  this  State  law  to  be  unobjectionable  upon  the  ground 
of  inequality  in  its  operation  upon  different  classes,  and  looking  at  it 
merely  as  a  measure  for  the  promotion  of  temperanee,  I  will  a?fc  the 
attention  of  the  Committee  for  a  few  moments  to  its  probable  effects. 

Remember,  Sir,  it  has  not  yet  gone  into  operation :  this  is  made  a 
reason  against  repealing  it ;  but,  in  my  judgment,  it  is  quite  the  contrary. 
After  it  has  become  the  actual  law  of  the  land,  there  would  be  more  rea- 
son for  claiming  for  it  what  it  advocates,  call  a  fair  trial — as  yet  it  is  no 
law  at  all,  but  it  is  to  become  such,  unless  sooner  repealed,  on  the  first 
day  of  May  next.  Repeal  it  now,  and  you  have  made  no  change  in  the 
legislation  on  this  subject — no  more  than  if  the  vote  upon  its  passage 
had  been  reconsidered.  Wait  until  next  session,  and  you  must  meet  all 
the  evils  of  a  change  of  legislation ;  you  will  then  have  to  yield  to  an  ex- 
asperated opposition — to  an  open  contempt  of  the  law;  and  to  the  resist- 
ance and  disagreement  of  juries,  what  you  now  deny  to  reason  and  re- 
monstrance 

It  is  an  inexpedient  law  because  it  will  not  effect  its  purpose,  and  can- 
not be  enforced.  When  I  say  it  cannot  be  enforced,  and  when  the  Mayor 
•  of  the  city  told  you  it  could  only  be  enforced  at  the  point  of  the  bayonet, 
t  is  not  meant  that  a  few  individuals  may  not  be  convicted  on  the  evi 
dence  of  common  hired  informers — it  is  not  meant  that  those  will  be  res- 
cued by  force ;  but  it  is  meant  that  nothing  short  of  an  armed  police 
will  put  the  law  into  effectual  execution.  For  one  convicted  retailer 
hundreds  will  violate  the  law  with  impunity.  See  the  difficulty  of  the 
case.  In  the  first  place,  who  will  be  witnesses  against  the  offenders  ? 
No  one — -unless  your  temperance  agents  can  train  and  discipline  a  band 
of  spies  and  informers  as  standing  witnesses ;  will  they  do  that  1  or  will 
they  degrade  themselves  to  the  dirty  office  ?  Next,  how  can  you  expect 
a  jury  to  convict  under  this  law  ?  In  such  cases  the  jury  are  to  judge  of 
the  law  as  well  as  of  the  fact — they  have  a  right  to  judge  of  the  consti- 
tutionality of  the  law  as  well  as  of  its  application.  It  would  not  only  be 
the  right  but  the  duty  of  every  juryman  who  should  be  satisfied  that  the 
law  was  unconstitutional,  to  return  a  verdict  of  not  guilty,  wht.tever 
might  be  the  evidence.  Jurors  are  sworn  to  return  a"  true  verdict  ac7 
cording  to  the  law  and  the  evidence.  The  constitution  of  th  3  United 
States  is  the  supreme  law  of  the  land — next  in  authority  to  that  are 
the  statutes  passed  by  virtue  of  it,  and  if  this  statute  seems  to  him 
to    be    in   conflict    with  any   of    the    rights    secured    by    those   instru-' 


107 

ments,  a  juror  has  a  right,  and  it  is  his  duty  to  refuse  to  convict 
upon  it.  I  do  not  mean  that  such  a  conclusion  should  be  hastily 
adopted  by  jurymen — but  they  will  be  addressed  with  the  same  ar- 
guments you  have  heard  here,  and  is  it  not  reasonable  to  suppose  that 
at  least  one  man  will  be  found  on  each  pannel  who  will  be  willing  to  be 
convinced  by  them.  Here  are  20,000  memorialist  who  now  declare 
opinion  !  and  one  dissenting  juror  will  prevent  a  conviction.  Then  that 
come  a  conflict  between  courts  and  juries — new  and  unconstituti  will 
modes  may  be  adopted  to  exclude  those  hostile  to  the  law  ;  the  monal 
ty  of  the  law  will  be  brought  into  contempt,  and  courts  of  justiceajes- 
become  the  scene  of  angry  debate,  and  perhaps,  in  the  end  the  judiciary 
will  be  sacrificed  to  the  popular  feeling.  One  thing  is  certain — opposi- 
tion to  this  law  will  increase  instead  of  diminish,  unless  all  violation' of 
it  can  be  put  down  at  once — If  a  contest  can  be  carried  on  by  the  oppo- 
nents of  the  law,  they  will  gain  strength  every  day.  Evil  disposed  per 
sons  will  rejoice  in  the  scenes  of  disorder  which  it  will  create,  and  good 
citizens  will  be  tired  of  a  warfare  that  keeps  the  public  mind  in  agita- 
tion. It  is  in  vain  for  the  remonstrants  to  arrogate  to  their  own  party  all 
the  respectability  and  virtue  of  the  State,  and  to  class  all  their  opponents 
among  the  intemperate  and  the  disorderly.  Among  the  names  in  this 
memorial,  are  the  best  of  our  citizens — sober-minded,  religious,  and 
peaceable  eitizens — men  of  property — men  of  influence.  This  is  no 
cause  in  which  such  men  will  give  their  names  for  asking.  The  course 
of  the  memorialists  is  a  responsible  one  ;  it  implies  deliberation  and  con- 
viction— it  commits  the  signer  to  an  opinion  that  he  cannot  disavow — 
while  on  the  other  hand  the  remonstrance  is  put  forward  as  the  act  of 
the  "  Temperance  Party,"  and  thousands  of  signatures  may  be  obtained 
for  such  a  paper  from  those  who  care  nothing  for  the  matter,  but  think 
there  can  be  no  harm  done  by  being  over-virtuous.  Look  at  their  peti- 
tion ;  it  bears  the  names  of  thousands  of  women — why,  Sir,  what  can 
these  women  know  of  the  expediency  of  this  law  1  Good  souls  !  all 
they  want  is  to  have  their  husbands  and  brothers  temperate,  industrious 
men — but  whether  this  will  make  them  so  or  not  they  are  as  ignorant  as 
children. 

When  I  say  that  this  law  cannot  be  enforced  in  the  courts  of  justice,  I 
speak  of  what  will  happen  from  a  knowledge  of  what  has  happened. 
Some  of  your  Committee  remember  the  old  embargo  law,  and  the  nu- 
merous prosecutions  under  it.  That  was  an  unpopular  law,  and  many 
believed  it  an  unconstitutional  law,  but  the  courts  sustained  it  and  would 
not  allow  its  unconstitutionality  to  be  argued  to  the  jury — but,  Sir,  the 
juries  would  not  convict  under  it.  Verdict  after  verdict  of  not  guilty, 
was  pronounced  in  the  face  of  the  clearest  evidence  of  the  fact.  The 
law  totally  failed  of  operation- — the  sentiment  of  the  people  was 
against  it,  and  the  courts  could  not  enforce  it.  Look  too  at  the  recent 
case  of  Abner  Rneeland,  tried  three  times  before  he  could  be  convicted 
of  the  most  obscene  blasphemy  ;  the  fact  was  not  denied,  but  the  law 
was  argued  to  be  unconstitutional  and  oppressive,  and  if  he  had  not  in- 
sulted public  decency,  as  well  as  denied  the  existence  of  God,  he  never 
could  have  been  convicted. 

Sir,  the  counsel  has  told  us  very  emphatically,  that  the  morality  of  a 
people  cannot  be  maintained  above  the  morality  of  their  laws.  It  is 
equally  true  that  laws  cannot  be  maintained  beyond  the  moral  sentiment 
of  the  community.  They  rest  upon  that,  and  upon  that  alone  for  their 
support — the  moral  sentiment  of  a  few  enthusiasts  will  not  do — nor  of  a 
mere  majority — they  must  have  the  earnest  support  of  the  whole  mass  of 
good  and  intelligent  men.     When  good  and  intelligent  men  are  seriously 


108 

divided  upon  the  expediency  of  a  restrictive  law,  it  cannot  be  expected 
to  stand:  and  if  gentlemen  think  there  is  not  such  a  serious  division  on 
this  subject,  they  greatly  deceive  themselves.  Strong  as  the  memorial  is 
in  good  names,  they  do  not  see  there  one-half  the  strength  of  the  oppo- 
sition to  this  law.  A  stronger  influence  exists  in  the  silent,  opinions  of 
men  whose  age,  office,  and  circumstances,  prevent  their  names  from  ap- 
pearing here.  The  support  of  the  law  you  hear  enjoined  in  the  most 
public  manner.  You  have  on  one  side  of  this  question  greetings  in  the 
market-place,  and  prayers  standing  in  the  corners  of  the  streets,  but  you 
will  feel  on  the  other,  the  strong  current  of  sober  opinion  revolting  from 
these  Utopian  schemes  of  radical  reform  in  morals  by  the  terrors  of  the 
law. 

But  suppose  you  can  enforce  it — that  is,  suppose  you  can  sup- 
press all  public  violation  of  it ;  will  the  cause  of  temperance  be  promot- 
ed by  it?  Will  pauperism  and  crime  disappear  before  this  mighty  en- 
gine of  reform  ? 

Sir,  upon  this  point  we  have  example  as  well  as  theory — we  have  facts 
that  are  better  than  all  conjecture.  By  the  unwarrantable  and  illegal  con- 
struction put  upon  the  law,  authorizing  the  County  Commissioners  to 
license  "  as  many"  retailers  as  they  thought  the  public  good  required,  in 
certain  Counties,  these  officers  have  undertaken  to  be  more  virtuous  than 
the  law,  and  have  decided  that  the  public  good  requires  none  at  all.  The 
consequence  has  been  in  those  counties,  just  what  this  law  proposes  for 
the  whole  Commonwealth — complete  prohibition  of  all  retailing.  And  Sir, 
this  Commissioners'  law  has  been  tolerably  well  enforced,  except  in  the 
very  large  towns;  much  better  than  your  law  ever  can  be ;  because  it  is  a 
law  enforced  by  men  chosen  by  the  people  of  the  county  for  the  very 
purpose — the  clear  will  of  the  majority  had  been  expressed  in  the  choice 
of  Commissioners,  and  the  people  know  that  the  same  question  will  be 
open  at  the  next  choice.  They  do  not  feel  it  as  a  law,  but  as  a  tempo- 
rary regulation  always  in  their  power  to  repeal ,  but  even  that  law 
has  been  openly  disregarded  in  New  Bedford,  where  we  are  told  that 
rum  is  retailed  about  the  streets  in  a  milk  cart.  But  what  has  been  the 
effect  of  this  regulation  during  the  three  years  it  has  existed  in  those 
counties  ?  Why,  sir,  we  should  not  have  dared  to  predict  such  a  conse- 
quence :  it  has  gone  even  beyond  conjecture.  No  other  sufficient  ex- 
planation of  the  fact  has  been  or  can  be  given,  but  it  is  an  indisputable 
fact,  that  in  those  counties  where  licenses  were  given,  crime  and  pauper- 
ism have  either  diminished  or  at  most  increased,  but  about  in  the  ratio  of 
the  increase  of  foreign  population  :  while  in  those  counties  where  the  pro- 
hibitory system  has  prevailed,  the  system  now  urged  upon  us  for  the  whole 
Commonwealth,  crime  and  pauperism  have  made  the  most  frightful  advan- 
ces. There  can  be  no  mistake  about  this,  the  fact  is  not  denied,  it  stands 
upon  official  returns.  How  is  it  accounted  for,  if  it  be  not  the  legitimate 
consequence  of  this  system  ?  They  say  it  was  the  hard  times :  pray,  which 
way  did  the  hard  times  work  1  times  were  as  hard  in  Boston  as  they  were 
in  New  Bedford.  Yet  crime  and  pauperism  increased  in  New  Bedford, 
and  diminished  in  Boston.  It  is  said  that  the  sea-board  towns  suffered 
particularly  by  the  hard  times,  and  that  the  prohibited  counties  all  bor- 
dered on  the  sea.  But  again,  sir,  is  not  the  county  of  Bristol  a  sea-coast 
county  1  And  is  not  New  Bedford  a  great  sea-coast,  commercial  town  ? 
Again,  it  is  said  that  the  influence  of  "Boston  the  great  reservoir"  poisoned 
the  more  virtuous  counties.  True,  Boston  did  supply  them  with  immense 
quantities  of  spirit.  Incredible  quantities  were  sent  to  Bristol  County, 
and  to  taverners  and  retailers,  to  be  used  there  in  violation  of  the  law. — 
But  do  the  gentlemen  think  that  if  they  subject  the  whole  Commonwealth 


109 

to  this  restriction,  some  other  "  great  reservoir"  \viij  not  open  ?  If  New 
Bedford  can  get  spirit  from  Boston,  cannot  Boston  get  it  from  Ports- 
mouth, from  Providence,  or  New  York  ?  Again  they  account  for  it 
by  saying  that  the  general  law  of  the  land  made  it  reputahle  to  drink, 
because  it  provides  for  licenses  "for  the  public  good."  And  do  they  think 
by  this  law  to  change  the  moral  sentiment  of  the  community.  Do  they 
think  men  drink  rum  "for  the  public  good"  when  the  law  declares  it  to 
be  so  and  will  leave  it  off  when  the  Legislature  changes  its  mind  on  the 
subject.  Really,  sir,  I  have  no  faith  that  our  community  is  so  docile 
and  ductile  to  the  various  changes  in  speculative  morality  brought  about 
by  Lectures  and  Conventions.  I  believe  this  is  a  question  on  which  they 
will  judge  for  themselves,  be  your  laws  what  they  may.  Another  reason 
assigned  for  the  backsliding  of  the  Temperance  County  of  Bristol  is,  that 
the  same  general  law  being  administered  differently  there,  and  in  other 
counties  "  has  caused  a  feeling  of  restlessness,  or  perhaps  resentment 
to  some  extent  unpropitious  to  its  fair  influence."  Sir,  I  was  much 
struck  with  the  admission  involved  in  this  explanation.  The  people  of 
Bristol,  it  seems,  drink  from  restlessness  and  resentment,  because  they  are 
forbidden  to  do  it  by  law,  while  people  in  other  counties  are  permitted 
to  do  it  :  And  when  you  have  forbidden  the  people  of  the  whole  State, 
will  not  they  drink  from  restlessness  and  resentment  ?  What  difference 
does  it  make  that  other  counties  have  been  allowed  to  retail,  while  the 
people  of  Bristol  by  their  own  act  have  prohibited  it  ?  Are  they  angry 
with  themselves?  with  the  fair  majority  of  their  own  county  ?  and  will 
they  not  be  as  angry  with  you  and  with  members  of  other  counties,  who 
impose  this  restriction  upon  them  by  law  ?  Sir,  I  doubt  not  the  truth  of 
what  the  gentleman  states — that  restlessness  and  resentment  under  re- 
straint have  aggravated  the  evil  of  intemperance  in  that  county,  and  so 
it  will  be  every  where  if  this  law  prevails.  When  it  was  first  said  before 
the  Committee,  that  under  this  law  people  would  drink  the  more  from 
a  principle  of  opposition,  the  argument  was  derided,  drinking  from  prin- 
ciple, was  thought  too  ridiculous  to  be  mentioned.  But  the  fact  was  known 
to  the  Memorialists  to  have  been  so,  and  now  the  counsel  for  the  Re- 
monstrants avows  it  to  have  been  so  in  their  favorite  county.  The  peo- 
ple of  Bristol  are  angry,  because  the  people  of  Suffolk  can  buy  liquor 
while  they  cannot,  and  they  drink  twice  as  much  out.  of  spite.  Just  so, 
sir,  it  will  be  elsewhere.  Opposition  to  the  law  will  beget  toleration  of 
intemperance,  and  fifteen  gallon  kegs  will  be  emptied  and  filled  again 
in  drunken  carousals  over  this  impotent  attnmpt  at  restriction. 

But  when  we  object  to  this  law,  we  are  asked  for  a  better.  Intemper- 
ance, it  is  said,  is  increasing:  what  shalll  e  done?  Sir,  this  brings 
me  to  the  last  topic  with  which  I  have  to  trouble  the  Committee. 
When  gentlemen  ask  us  what  shall  be  done.  We  ask  them  to  look  at 
what  has  been  done,  one  of  the  greatest  moral  reformations  that  the 
world  ever  saw  has — no,  sir,  I  must  change  the  word — had  already  been 
brought  about  upon  the  subject.  Within  the  last  twenty  years  an  incred- 
ible change  had  been  wrought  in  the  habits  of  the  people  of  this  State — 
Intemperance, from  being  the  peculiar  vice  of  our  people, had  become  ex- 
ceedingly rare.  Upon  this  all  are  agreed, that  a  mighty  change  had  been 
wrought.  It  is  about  as  weil  agreed  that  within  two  or  three  years  the 
course  has  been  the  other  way.  Now  what  causes  produced  these  two 
opposite  effects  ?  What  causes  were  at  work,  and  apparently  producing 
them  ?  The  reformation  was  brought  about  wholly  by  a  system  of  ear- 
nest and  persevering  appeals  to  the  public  opinion,  without  the  least  as- 
sistance from  the  law.  Societies,  public  meetings,  addresses,  and  trav- 
elling lecturers.     These    were  the  agents  that  were  employed  to  bring  it 


no 

about — it  was  accomplished  wholly  by  what  in  this  discussion  has  been 
called  moral  suasion.  Within  a  few  years  an  increasing  rigor  of  law  has 
been  called  in  aid  of  this  benevolent  design,  and  the  measures  of 
moral  suasion  have  been  relaxed.  I  do  not  think  it  necessary  to  bring 
facts  in  proof  of  these  statements — every  body  knows  their  truth.  I 
wish  to  make  no  invidious  remarks;  but  every  one  who  knows  by  whom 
and  how  the  measures  of  the  temperance  party  are  now  carried  on,  and 
who  remember  by  whom  and  how  the  reform  was  begun  and  carried  for- 
ward will  percieve  at  once  how  much  mere  moral  influence  on  this  sub- 
ject has  declined.  The  concentrated  voluntary  action  of  individ- 
uals has  subdivided  into  mere  organization.  The  agents  who 
were  before  the  humble  ministers  of  others,  have  become  the 
chief  of  the  synagogue  ;  they  find  it  easier  to  preside  and  make  reports 
in  conventions  than  to  travel  about  like  the  mild  and  pious  Hildreth,  rea- 
soning upon  temperance  and  beseeching  men  to  be  saved.  The  Tem- 
perance men  have  become  a  party — and  the  party  has  become  numerous, 
strong  and  well  organized  ;  and  like  all  men  in  power,  they  love  the  ex- 
cercise  of  power.  They  have  become  impatient  of  opposition,  and  they 
would  wield  the  thunder  of  the  law  to  put  it  down.  Sir,  the  people  feel 
the  difference — they  see  too  much  of  pride,  too  much  of  arrogance  in  all 
this.  The  temperance  lectures  arc  deserted — public  opinion  has  lost  its 
tone  and  its  current  has  turned  backward.  It  is  true,  it  is  alarmingly 
true,  that  Intemperance  has  increased,  and  its  increase  may  be  traced 
back  to  the  time  when  moral  suasion  gave  way  to  legislative  compulsion. 
If  I  were  called  on  to  state  what  was  the  first  error  committed  in  this 
cause,  I  should  unhesitatingly  point  to  the  pledge  of  total  absti- 
nence required  of  the  members  of  temperance  societies.  At  t  hat  point 
persnsion  was  first  exchanged  for  compulsion.  1  remember  well,  sir, 
and  I  was  in  a  situation  to  feel  the  effect  of  that  measure.  I  believe  that 
very  many  retired  from  all  open  connexion  with  the  cause,  when  they 
found  that  this  attempt  was  made  to  bind  their  consciences.  They  felt 
that  it  put  an  end  to  all  voluntary  action,  that  each  man  was  to  be  a  spy 
upon  his  neighbor,  and  that  a  connexion  with  a  temperance  society  af- 
ter this  pledge,  gave  to  it  an  inquisitorial  power  over  its  members.  They 
felt  justly  that  the  abstinence  that  was  compelled  by  a  vow  would  cease 
to  be  a  virtue — it  brought  it  down  from  the  sublimity  of  a  voluntary  sac- 
rifice to  the  paltry  fear  of  being  caught  in  breaking  a  promise. 

"IVo,  not  an  oath  ;  if  not  the  face  of  men, 
The  sufferance  of  our  souls,  the  times  abuse, 
If  these  be  motives  weak  break  off  betimes  — 

Unto  bad  causes  swear 

Such  creatures  as  men  doubt — but  do  not  stain 
The  even  virtue  of  our  enterprize, 
To  think  that  or  our  cause  or  our  performance 
Did  need  an  oath." 

If  the  gentlemen  now  ask  us  in  earnest  what  shall  be  done,  we  say  to 
them,  retire  from  the  lobbies  of  the  Legislature — let  the  law  be  restored  to 
what  it  was  when  this  State  was  as  remarkable  for  temperance  as  it  bad 
before  been  for  intemperance.  Repeal  your  pledge  of  total  abstinence. 
Give  up  your  ostentatious  city  conventions  whose  influence  never  reaches 
the  poor  creatures  that  most  need  your  good  offices,  but  only  exhaust  in  ex- 
penses the  means  that  would  enable  you  to  send  out  bumble,  pious  and 
warm  hearted  preachers  of  temperance.  Go  back  to  that  moral  suasion 
under  which  this  reform  grew  up  and  flourished  ;  abolish  all  attempts  to 
orce  men  to  be  temperate  by  fear    of  punishment,  or  by  the    still   more 


Ill 

futile  experiment  of  biding  from  them  the  intoxicating  liquor.  Respect 
the  rights  and  liberties  of  the  temperate,  as  well  as  the  necessities  of  the 
intemperate.  It  is  not  true,  as  your  counsel  has  told  you,  repeating  your 
own  words,  that  "moral  suasion  has  done  its  office";  it  has  not  "carried  this 
reform  as  far  as  it  can  go  without  a  change  of  the  law,"  Sir,  moral  sua- 
sion got  tired  before  it  had  half  done  its  office — it  became  satisfied  with 
the  wonders  it  had  done,  and  too  indolent  to  work  longer  itself,  it  turned 
over  its  unfinished  duties  to  the  hands  of  the  law.  I  defy  the  proof  that 
earnest,  humble  and  affectionate  persuasion  has  ceased  to  prevail  with 
the  intemperate  as  much  as  it  ever  did.  The  misfortune  is,  that  we  have 
less  of  the  means  employed  to  produce  the  effect. 

But  if  moral  suasion  could  not  carry  the  reform  farther,  it  would  have 
been  well  employed  in  maintaining  it  where  it  was  ;  and  now  to  restore  it 
to  that  position,  would  be  reward  enough  for  all  the  efforts  of  the  Remon- 
strants. It  will  be  time  enough  for  them  to  say  that  moral  suasion  has 
done  its  office  when  they  have  restored  what  by  its  neglect  they  have  al- 
lowed to  fall  into  decay.  Even  then,  sir,  we  would  cheer  them  on  to  far- 
ther exertions  in  the  use  of  the  same  means;  and  when  they  find  those 
means — the  only  means  their  Master  used,  when  his  disciples  would  bave 
called  down  fire  from  Heaven, — fail  to  carry  the  work  farther,  they  may 
content  themselves  with  the  reflection  that  they  have  done  all  they  can, 
and  their  successors  will  find  full  employment  in  maintaining  what  they 
have  done. 

Mr.  Chairman.  I  have  but  one  word  more  to  say.  Tins  Law  will  ee 
repealed.  I  feel  tlie  strongest  conviction  that  the  people  will  not  bear  it. 
It  is  an  encroachment  on  the  rights  of  the  sober  and  of  the  temperate.  I 
believe  I  am  as  willing  as  most  men  to  submit  to  the  laws, — but  I  cannot 
acquiesce  in  this.  I  feel  it  as  an  encroachment  on  my  own  rights,  and  1 
never  can  cease  to  oppose  il.  Personally  as  well  as  representing  the  inerr.or- 
alists  I  protest  against  it.  I  protest  against  it  as  an  unwarrantable  restric- 
tion upon  the  habits  of  private  life.  I  proles',  against  its  inequality  as  it 
operates  on  different  classes  of  the  community.  I  protest  against  it  as 
tending  to  introduce  perjury  and  contempt  of  the  laws,  and  as  requiring  for 
its  execution  the  base  and  corrupting  instrumentality  of  ?pies  and  common  in- 
formers. I  protest  against  it  as  worse  than  worthless  as  a  temperance  meas- 
ure ;  as  an  abandonment  of  all  regulation  and  of  the  moral  means  that  had 
already  wrought  a  wonderful  reformation  throughout  the  land,  and  the  sub- 
stitution of  a  system  of  prohihition  and  force.  I  protest  against  it  as  ab- 
surd in  theory  and  impracticable  in  execution.  Sir.  it  will  be  repealed. 
The  question  is  only  whether  it  shall  be  done  now  when  a  wholesome  Jaw 
of  regulation  will  take  the  place  of  it,  or  hereafter  when  the  public  mind 
has  been  inflamed  by  opposition  and  resistance.  You  have  now  (he  whole 
subject  in  your  hands.  1  beseech  you,  let  it  not  pass  out  of  them  until  the 
work  is  done. 


Note — The  Committee  have  now  been  able  to  furnish  the  public  with  a  full  and 
correct  report  of  all  the  evidence  on  both  sides,  and  of  the  arguments  on  one  side,  be- 
fore the  Legislative  Committee.  They  did  not  feel  authorized,  from  the  importance  of 
the  subject,  to  omit  any  portion  of  it,  and  this  has  caused  the  delay  in  its  preparation 
and  publication.  They  ask  for  these  pages  a  candid  consideration,  and  upon  that  they 
are  content,  to  rest  the  issue  in  every  fair  mind.  The  argument  was  conclusive  with 
the  Committee  who  heard  it,  so  far  as  regulation  against  prohibition  is  concerned,  for 
they  repealed  the  former  and  rejected  the  latter,  in  their  bill.  Another  Legislature,  it  is 
believed,  will  be  free  to  act  upon  this  great  question,  with  wisdom,  candor  and  forbear- 
ance. 


. 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •  Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILIT 


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